Change in Submission Requirements for State Mitigation Plans, 22873-22883 [2014-09461]
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11. Indian Tribal Governments
4. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
5. Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. We have
analyzed this rule under that Order and
determined that this rule does not have
implications for federalism.
6. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
7. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
8. Taking of Private Property
This rule will not cause a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
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9. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
10. Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
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This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
12. Energy Effects
This action is not a ‘‘significant
energy action’’ under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use.
13. Technical Standards
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
14. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have determined that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded from further review under
paragraph 34(g) of Figure 2–1 of the
Commandant Instruction. This rule
involves establishing a temporary safety
zone to provide safety for the
recreational boaters that will be
spectators at the Henderson Breakfast
Lions Club Tri Fest event.
An environmental analysis checklist
and a categorical exclusion
determination are available in the
docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the U.S. Coast Guard amends
33 CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
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22873
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Pub. L. 107–305, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
2. A new temporary § 165.T08–0186 is
added to read as follows:
■
§ 165.T08–0186 Safety Zone; Ohio River,
Miles 803.5 to 804.5, Henderson, KY.
(a) Location. The following area is a
safety zone: All waters of the Ohio River
between mile 803.5 and mile 804.5,
Henderson, KY, extending the entire
width of the Ohio River.
(b) Effective dates. This section is
effective from 9:00 p.m. to 9:30 p.m. on
April 25, 2014.
(c) Regulations. (1) In accordance with
the general regulations in § 165.23 of
this part, entry into this safety zone is
prohibited unless authorized by the
Captain of the Port (COTP) Ohio Valley
or a designated representative.
(2) Persons or vessels desiring to enter
into or pass through the safety zone
must request permission from the COTP
Ohio Valley or a designated
representative. They may be contacted
on VHF–FM channel 16 or by telephone
at 1–502–5424.
(3) If permission is granted, all
persons and vessels shall comply with
the instructions of the COTP Ohio
Valley or designated representative.
(d) Informational Broadcasts. The
COTP Ohio Valley or a designated
representative will inform the public
through broadcast notices to mariners of
the enforcement period for the safety
zone as well as any changes in the
planned dates and times of enforcement.
Dated: April 4, 2014.
R.V. Timme,
Captain, U.S. Coast Guard, Captain of the
Port Ohio Valley.
[FR Doc. 2014–09382 Filed 4–24–14; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 201
[Docket ID: FEMA–2012–0001]
RIN 1660–AA77
Change in Submission Requirements
for State Mitigation Plans
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This Final Rule revises the
Federal Emergency Management Agency
SUMMARY:
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Federal Register / Vol. 79, No. 80 / Friday, April 25, 2014 / Rules and Regulations
(FEMA) regulations by changing
submission requirements for State
Mitigation Plans. This Final Rule
reduces the frequency by which States
must submit updates to FEMA on their
State Mitigation Plans. Previously, these
entities prepared and submitted updates
with FEMA for review and approval
every 3 years. Now, these entities will
prepare and submit updates with FEMA
for review and approval every 5 years.
DATES: Effective May 27, 2014.
Comments regarding the information
collection must be submitted on or
before May 27, 2014.
ADDRESSES: Comments and related
materials are available online by going
to www.regulations.gov, and inserting
FEMA–2012–0001 in the ‘‘Search’’ box,
and then clicking ‘‘Search’’.
Submit written comments on the
information collection to the Office of
Information and Regulatory Affairs,
Office of Management and Budget.
Comments should be addressed to the
Desk Officer for the Department of
Homeland Security, Federal Emergency
Management Agency, and sent via
electronic mail to oira.submission@
omb.eop.gov or faxed to (202) 395–5806.
FOR FURTHER INFORMATION CONTACT:
Doug Bellomo, Division Director, Risk
Analysis Division, Federal Insurance
and Mitigation Administration, DHS/
FEMA, 1800 South Bell Street,
Arlington, VA 20598–3030. Phone: (202)
646–2903. Facsimile: (202) 646–2787.
Email: doug.bellomo@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
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Table of Abbreviations
CFR—Code of Federal Regulations
DHS—Department of Homeland Security
DMA 2000—Disaster Mitigation Act of 2000
EA—Environmental Assessment
EIS—Environmental Impact Statement
FEMA—Federal Emergency Management
Agency
FMA—Flood Mitigation Assistance
HMA—Hazard Mitigation Assistance
HMGP—Hazard Mitigation Grant Program
IFR—Interim Final Rule
NEMA— National Emergency Management
Association
NEPA—National Environmental Policy Act
of 1969
NPRM—Notice of Proposed Rulemaking
OMB—Office of Management and Budget
PDM—Pre-Disaster Mitigation
PRA—Paperwork Reduction Act of 1995
RIN—Regulatory Identifier Number
Stafford Act—Robert T. Stafford Disaster
Relief and Emergency Assistance Act, as
amended
Table of Contents
I. Basis and Purpose
II. Background
A. Disaster Mitigation Act of 2000
B. Hazard Mitigation Assistance
C. Regulatory History
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D. Discussion of Public Comments and
Final Rule
E. Implementation
III. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act (PRA) of 1995
E. National Environmental Policy Act
(NEPA) of 1969
F. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13132, Federalism
H. Executive Order 12630, Taking of
Private Property
I. Executive Order 12898, Environmental
Justice
J. Executive Order 12988, Civil Justice
Reform
K. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
L. Executive Order 11988, Floodplain
Management
M. Congressional Review Act
I. Basis and Purpose
This Final Rule will change the
frequency of State Mitigation Plan
updates, by extending the update
requirement for States from every 3
years to every 5 years. Currently, State,
Tribal, and Local Mitigation Plans
submissions are on different schedules:
Tribal and local governments submit
Mitigation Plan updates to FEMA every
5 years, while States submit their
mitigation plan updates—both the
Standard and the Enhanced Mitigation
Plan 1 updates—to FEMA every 3 years.2
The Final Rule will put all State, Local,
and Tribal Mitigation Plan updates on
the same schedule.
FEMA plans to change the frequency
of the update requirement for several
reasons. First, the proposed reduction in
update frequency will reduce the
regulatory burden on States as well as
burden on FEMA. Second, aligning the
update frequency with local and Tribal
update requirements may foster closer
coordination of mitigation planning and
implementation efforts. Third, by
relieving the regulatory burden imposed
from the frequency of State plan
updates, States and FEMA may be able
to shift resources from the update and
1 State Mitigation Plans are divided into tiers:
Standard State Mitigation Plans and Enhanced State
Mitigation Plans. Enhanced State Mitigation Plans
have additional requirements and, for States that
comply with the additional requirements, allow for
additional disaster funding.
2 In addition to States, Tribal Governments can
also submit Enhanced State Mitigation Plans. This
Final Rule reduces the frequency for those Tribes
who choose to submit Enhanced State Mitigation
Plans; FEMA will now require these updates every
5 years (no longer every 3 years).
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review cycle to other mitigation
planning activities, such as increased
delivery of training and technical
assistance to support local and Tribal
Mitigation Planning, and to implement
additional mitigation actions identified
through the planning process.
II. Background
Hazard mitigation is any sustained
action taken to reduce or eliminate longterm risk to people and property from
natural hazards and their effects. The
purpose of hazard mitigation planning
is to identify policies and actions that
can be implemented over the long-term
to reduce risk and future losses.
Mitigation plans form the foundation for
a community’s long-term strategy to
reduce disaster losses and break the
cycle of disaster damage, reconstruction,
and repeated damage. The planning
process is as important as the plan itself.
It creates a framework for risk-based
decision making to reduce damage to
lives, property, and the economy from
future disasters. State, Tribal, and local
governments benefit from mitigation
planning by identifying publiclyaccepted cost-effective actions for risk
reduction, focusing resources on the
greatest risks and vulnerabilities, and
building partnerships by involving
people, organizations, and businesses.
The planning process, and mitigation
plans, foster education and awareness of
hazards and risk, communicate
priorities to State and Federal officials,
and align risk reduction with other
community objectives, such as
community development. State, Tribal,
and local governments are required to
develop a hazard mitigation plan as a
condition for receiving certain types of
Federal non-emergency disaster
assistance.
A. Disaster Mitigation Act of 2000
The Disaster Mitigation Act of 2000
(DMA 2000), Public Law 106–390, 114
Stat. 1552, amended the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (Stafford Act) and
provided an opportunity for States,
Tribes, and local governments to take a
new and revitalized approach to
mitigation planning. Section 104 of
DMA 2000 continued the requirement
for a State mitigation plan as a condition
of non-emergency Stafford Act
assistance and FEMA mitigation grants,
and created incentives for increased
coordination and integration of
mitigation activities at the State level.
DMA 2000 repealed section 409 of the
Stafford Act, which required mitigation
plans and the use of minimum
standards, and replaced it with two
separate sections of the law: Mitigation
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FEMA-approved hazard mitigation
plans developed under 44 CFR part 201
are used by FEMA to determine State
and Tribal eligibility for Stafford Act
assistance, including HMGP and PDM
grant funds, and for FMA funding under
the National Flood Insurance Act.
FEMA HMA grants are provided to
eligible applicants (States/Tribes/
Territories) for eligible activities, who,
in turn, provide subgrants to local
governments and other eligible entities.
Subgrantees may be a State agency, local
government, private non-profit
organization (for HMGP only), or Indian
Tribal government. The applicant
selects and prioritizes subapplications
developed and submitted to them by
subapplicants. These subapplications
are submitted to FEMA for
consideration of funding. An Indian
Tribal government may have the option
to apply for HMA grants through the
State as a subapplicant or directly to
FEMA as an applicant. Indian Tribal
governments acting as a subgrantee are
accountable to the State grantee.
planning in section 322 (codified at 42
U.S.C. 5165), and minimum codes and
standards in section 323 (codified at 42
U.S.C. 5165a). FEMA previously
implemented section 409 through 44
CFR part 206, Subpart M. The DMA
2000 planning requirements were
placed in 44 CFR part 201 to reflect the
broader relevance of planning to all
FEMA mitigation programs, while the
minimum codes and standards
remained in 44 CFR part 206, Subpart
M.
Section 104 of DMA 2000 and
FEMA’s implementing regulations
emphasize the need for State, Tribal,
and local entities to closely coordinate
mitigation planning and
implementation efforts. The planning
process provides a link between State,
Tribal and local mitigation programs.
Both State level and local plans should
incorporate mitigation implementation
strategies and sustainable recovery
actions. FEMA also recognizes that
governments are involved in a range of
planning activities and that mitigation
plans may be linked to or reference
hazardous materials and other nonnatural hazard plans. Improved
mitigation planning will result in a
better understanding of risks and
vulnerabilities, as well as expedite
implementation of measures and
activities to reduce those risks, both preand post-disaster.
DMA 2000 included a provision for
increased Federal funding for hazard
mitigation measures for States with
approved mitigation plans. 42 U.S.C.
5165(e). FEMA implemented this
provision through development of a
new two-tiered State mitigation plan
process: Standard State Mitigation
Plans, which allow a State to receive
Hazard Mitigation Grant Program
(HMGP) funding ranging from 7.5 to 15
percent of disaster grants awarded by
FEMA, depending on the total estimated
eligible Stafford Act disaster assistance,
44 CFR 206.432(b)(1); and Enhanced
State Mitigation Plans, which allow a
State to receive HMGP funds based on
20 percent of the total estimated eligible
Stafford Act disaster assistance. 44 CFR
206.432(b)(2); 44 CFR 201.5. Enhanced
State Mitigation Plans must meet the
requirements for Standard State
Mitigation Plans at 44 CFR 201.4 and
must demonstrate further that the State
has developed a comprehensive
mitigation program, that it effectively
uses available mitigation funding, and
that it is capable of managing the
increased funding. 44 CFR 201.5.
B. Hazard Mitigation Assistance
FEMA Hazard Mitigation Assistance
(HMA) grant programs provide funding
for eligible mitigation activities that
reduce disaster losses and protect life
and property from future disaster
damages. In general, under each of the
three HMA programs, the update of
State mitigation plans is eligible for
funding.
Currently, FEMA administers the
following HMA grant programs:
• HMGP assists in implementing
long-term hazard mitigation measures
following Presidential disaster
declarations. 44 CFR 206.434(c)(5)(iv).
Funding is available to implement
projects in accordance with State,
Tribal, and local priorities. 44 CFR
206.435. HMGP grants may fund the
updating of mitigation plans. 44 CFR
206.434. States must have a FEMAapproved State (Standard or Enhanced)
Mitigation Plan at the time of the
disaster declaration and at the time
HMGP funding is obligated to the
Grantee to receive an HMGP award. 44
CFR 201.4(a) and 201.5(a).
• Pre-Disaster Mitigation (PDM)
provides funds on an annual basis for
hazard mitigation planning and the
implementation of mitigation projects
prior to a disaster. 42 U.S.C. 5133. The
goal of the PDM program is to reduce
overall risk to the population and
structures, while at the same time
reducing reliance on Federal funding
from actual disaster declarations. 42
U.S.C. 5133. States must have a FEMAapproved State (Standard or Enhanced)
Mitigation Plan by the application
deadline and at the time of obligation of
the grant funds. 44 CFR 201.4(a) and
201.5(a).
• Flood Mitigation Assistance (FMA)
Program provides funds on an annual
basis for flood mitigation planning and
the implementation of flood mitigation
projects. 42 U.S.C. 4104c. The goal of
the FMA Program is to reduce or
eliminate claims under the National
Flood Insurance Program. 44 CFR
78.1(b). The Biggert-Waters Flood
Insurance Reform Act of 2012, Public
Law 112–141, 126 Stat. 916, eliminated
the Severe Repetitive Loss and the
Repetitive Flood Claims programs and
changed the FMA program to assist
mitigation of repetitive loss and severe
repetitive loss properties. States must
have a FEMA-approved State (Standard
or Enhanced) Mitigation Plan by the
application deadline and at the time of
obligation of the grant funds. 44 CFR
201.4(a) and 201.5(a).
FEMA’s February 26, 2002 Interim
Final Rule (IFR), entitled ‘‘Hazard
Mitigation Planning and Hazard
Mitigation Grant Program,’’ 67 FR 8844,
implemented section 322 of the Stafford
Act by adding a new Part 201 to 44 CFR.
The IFR required that Standard State
Mitigation Plans be updated by
November 1, 2003 3 and resubmitted to
the appropriate Regional Director for
approval every 3 years from the date of
the approval of the previous plan in
order to continue program eligibility.
Additionally, the IFR provided criteria
for Enhanced State Mitigation Plans and
required that for States to be eligible for
the 20 percent HMGP funding, the
Enhanced State Mitigation Plan must be
approved by FEMA within the 3 years
prior to the current major disaster
declaration, and resubmitted for
approval every 3 years. On October 31,
2007, FEMA published a Final Rule
adopting, without substantive changes,
the requirements for hazard mitigation
planning pursuant to section 322 of the
Stafford Act. 72 FR 61552.
Table 1 displays the regulatory history
for the mitigation planning
requirements listed in §§ 201.3–201.5
for the Standard and Enhanced State
Mitigation Plan reporting requirements.
Currently, these Plans have to be
updated every 3 years.
3 An October 1, 2002 revision changed the date
by which the Standard State Mitigation Plans had
to be updated from November 1, 2003 to November
1, 2004. 67 FR 61512. A subsequent revision
provided for a 6-month extension, up to May 1,
2005, at the request of the Governor or Indian Tribal
leader. 69 FR 55094.
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C. Regulatory History
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TABLE 1
Effect on §§ 201.3,
201.4, & 201.5
Changes to State Mitigation Plan requirements
Action
3067–AD22 ..............
IFR ..........................
2/26/02
67 FR 8844
Added §§ 201.3,
201.4, & 201.5.
3067–AD22 ..............
IFR ..........................
10/1/02
67 FR 61512
Revised § 201.3 and
§ 201.4.
1660–AA17 4 ............
IFR ..........................
9/13/04
69 FR 55094
Added § 201.3(c)(7)
& Revised § 201.4.
1660–AA17 ..............
Final Rule ................
10/31/07
72 FR 61552
Finalized Part 201 ...
1660–AA36 ..............
IFR ..........................
10/31/07
72 FR 61720
Revised § 201.3 ......
1660–AA36 ..............
Final Rule ................
9/16/09
74 FR 47471
Finalized § 201.3 .....
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4 The
Date
Federal
Register
citation
RIN
States must have approved Standard
State Mitigation Plan by November 1,
2003 and every 3 years from the date
of the approval of the previous plan.
Enhanced State Mitigation Plans resubmitted to the appropriate Regional Director every 3 years. For State to be
eligible for 20 percent HMGP funding,
the Enhanced State Mitigation plan
must be approved by FEMA within the
3 years prior to current major disaster
declaration.
Changed the requirement to update the
Standard State Mitigation Plan to November 1, 2004.
Allowed a 6 month extension to the deadline for the Standard State Mitigation
Plan, up to May 1, 2005.
Corrected a typographical error in
201.4(c)(2)(ii).
Removed references to November 1,
2004 deadline and made technical corrections.
No changes.
RIN changed from 3067–AD22 to 1660–AA17, as a result of FEMA becoming a component of the Department of Homeland Security.
D. Discussion of Public Comments and
Final Rule
On March 1, 2013, FEMA published
the ‘‘Change in Submission
Requirements for State Mitigation
Plans’’ Notice of Proposed Rulemaking
(NPRM) at 78 FR 13844. The NPRM
proposed to reduce the frequency of
Standard State and Enhanced State
Mitigation Plan updates by extending
the update requirement from 3 to 5
years.
The comment period closed on April
30, 2013. FEMA received twenty-three
comments in response to the NPRM. Of
the 23 comments received, 21 comments
were supportive, 1 comment was
opposed, and 1 comment was not
germane. Following is a discussion of
the comments submitted.
The 21 comments submitted in
support of the NPRM came from a
variety of sources, including State and
local governments, associations, and
commenters that chose to remain
anonymous. Many of the supportive
comments cited reasons consistent with
the rationale provided in the NPRM (78
FR 13847), such as:
• reducing the regulatory burden on
States and those Indian Tribal
governments that may choose to
develop Enhanced Mitigation Plans;
• aligning with the local and Tribal
Mitigation Plan update requirements,
which may foster closer coordination of
mitigation planning and
implementation efforts; and
• relieving the regulatory burden, so
resources may be shifted to other
mitigation planning activities, such as
increased delivery of training and
technical assistance, and/or to
implementing additional mitigation
actions.
Several comments cited additional
reasons in support of the NPRM, such
as:
• maintaining or improving the
quality of the plans and/or program;
• facilitating better data sharing;
• improving integration and
coordination with other planning
cycles; and
• providing a more realistic time
frame for implementation of the
mitigation plan.
Six comments referenced or included
information regarding costs for
mitigation plan updates. Such
mitigation plan update cost estimates
were consistent with the estimates
FEMA used to calculate the impacts of
the rule.
One comment was supportive of the
NPRM, provided that planners remain
engaged in mitigation planning and
implementation, presuming a best
practice of annual review and
evaluation. The current mitigation
planning regulation requires States to
include a plan maintenance process that
establishes the method and schedule for
monitoring, evaluating, and updating
the plan (44 CFR 201.4(c)(5)). Through
guidance, FEMA encourages, but does
not require, States to perform an annual
evaluation of the plan, including any
changes to the nature and magnitude of
hazards, as well as the effectiveness of
programs, policies, and projects.
While supportive of the NPRM, one
comment indicated that a 7-year cycle
would be even better. Additional cost
savings from a 7-year cycle compared to
a 5-year cycle is approximately
$857,000 ($2,855,833 annualized 7-year
cost savings ¥$1,999,083 annualized 5year cost savings = $856,750). The
following table highlights costs over 3,
5, and 7 years, as well as provides a
comparison.
TABLE 2
State plan type
Mitigation plan
update unit
cost
Standard Plan Update
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$205,000
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Update cost
over 3 years
$68,333
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Update cost
over 5 years
Update cost
over 7 years
$41,000
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$29,286
7 years
vs.
3 years
¥$39,047
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7 years
vs.
5 years
¥$11,714
5 years
vs.
3 years
¥$27,333
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22877
TABLE 2—Continued
State plan type
Mitigation plan
update unit
cost
Enhanced Plan Update
Update cost
over 3 years
$524,000
$174,667
Update cost
over 5 years
Update cost
over 7 years
$104,800
$74,857
7 years
vs.
3 years
¥$99,810
7 years
vs.
5 years
¥$29,943
5 years
vs.
3 years
¥$69,867
Values rounded to nearest dollar which distorts overall reduction over time (e.g. 15 years, 21 years, 35 years).
FEMA acknowledges that additional
cost savings may be realized from a 7year update cycle, but FEMA reaffirms
the benefits of the 5-year update cycle
as stated in the NPRM that lengthening
the State Mitigation Plan update cycle to
5 years aligns with the local and Tribal
Mitigation Plan update requirements
and may foster closer coordination of
mitigation planning and
implementation efforts. Further, as
stated in the NPRM, stakeholders, such
as the National Emergency Management
Association (NEMA) and Members of
Congress, have asked FEMA to amend
44 CFR Part 201 to extend the update
cycle and have consistently cited 5
years. The NPRM cited a letter dated
November 8, 2011 from 23 Members of
Congress stating:
[m]aintaining high quality up-to-date
mitigation plans is a critical component of
our national disaster response plan.
Extending the update cycle to [5] years
would ensure that our [S]tate planning
offices can complete this vital task, along
with their other duties, while maximizing
available resources.
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The NPRM also stated that in 2011,
the Department of Homeland Security
(DHS) received public comments on the
mitigation planning regulations in
response to a Federal Register notice
published as part of a retrospective
review of its regulations. According to
DHS’s final report titled ‘‘Final Plan for
the Retrospective Review of Existing
Regulations’’ dated August 22, 2011
(See page 16),
DHS received a comment (the top-voted
comment mentioned above) recommending
that DHS change the current FEMA State
Standard and Enhanced Hazard Mitigation
Plan update requirement from every [3] years
to every [5] years so that it is consistent with
current Local Hazard Mitigation Plan update
requirements. Commenters asserted that [5]
years would be an appropriate timeframe for
[S]tate mitigation plan updates for both
efficiency and resource-limitation reasons.
Extending the update cycle from 3 to
7 years does not align with the current
local and Tribal mitigation planning 5year update cycle. Additionally, based
on the majority of responses from
stakeholders, FEMA has chosen not to
pursue the suggestion of extending the
update cycle from 3 to 7 years.
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Only one comment, submitted by a
non-profit environmental advocacy
organization, opposed the NPRM. The
comment was submitted to the docket in
the form of a letter along with more than
90 individual documents totaling almost
7,900 pages (after accounting for
documents submitted in multiple parts
and elimination of duplication). The
letter cited to 11 of the attachments that
the commenter submitted to the docket
by footnoting them. Other than the
letter, none of the supporting
attachments referenced the NPRM. As a
result, no response is provided to the
attachments.
The remainder of this section will
address the comment from the nonprofit environmental advocacy
organization that opposed the NPRM
because, as it stated:
the extension is not accompanied by
requirements to ensure the quality of the
State Mitigation Plans increases to
compensate for less frequent updates. FEMA
must ensure that the State Mitigation Plans
are as effective and as timely as possible
since hazard mitigation planning is critical to
reduce risks to the public and to improve
safety and health. To proceed with the
proposed extension as currently articulated is
arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law.
The comment asserted that if the State
Mitigation Plans do not incorporate the
most current climate change studies and
modeling, FEMA’s NPRM would lead to
plans losing relevance and becoming
outdated more quickly, due to climate
change implications, and the quality of
hazard mitigation would suffer. The
comment further stated that:
If the [S]tate update requirement is
extended, FEMA should take this
opportunity to ensure that [S]tates use the
extra [2] years to significantly improve their
plans, especially regarding climate change.
States tend to rely exclusively on historical
data to predict the probability of future
hazard events, and determine priorities for
mitigation. Unfortunately, most [S]tates are
not incorporating climate change projections
and therefore are not maximizing accuracy of
hazard predictions in risk assessments.
FEMA should only approve State Hazard
Mitigation Plans that adequately address
climate change. FEMA also should provide
agency guidance in FEMA’s Blue Book on
how to incorporate climate change into such
plans. In addition to the current proposed
rulemaking, FEMA should also initiate
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another new rulemaking to amend 44 CFR
§ 201.4, in order to confirm that climate
change must be addressed by [S]tates in their
hazard mitigation plans.
As stated in the NPRM, in order to be
effective, plans must be relevant.
Therefore, 44 CFR 201.4(d) requires that
the plans be reviewed and revised to
reflect changes in development,
progress in statewide mitigation efforts,
and changes in priorities. Mitigation
planning is a continuous process of
engaging stakeholders, identifying
hazards as conditions may change,
assessing risk and vulnerabilities as
development patterns may change, and
developing a strategy that can be
implemented using available resources,
programs, and initiatives based on
current priorities.
The purpose of the NPRM is only to
extend the update requirement from 3 to
5 years and does not change the
requirements for the content of the
Mitigation Plan. While section
201.4(c)(2) does not list or require
specific hazards be addressed in the
Mitigation Plan, States are required to
include an overview of the type and
location of all natural hazards that can
affect the State. In fact, 44 CFR
201.4(c)(2)(i) requires the Mitigation
Plan to contain information not only on
previous occurrences but on the
probability of future hazard events. This
approach allows States discretion in
meeting the Federal mitigation planning
requirements and recognizes differences
that exist among State governments with
respect to capability and resources as
well as variations in vulnerability
within the planning area.
In addition, the FEMA Climate
Change Adaptation Policy Statement
(2011–OPPA–01) affirms the need to
address risks that may be linked to
climate change and identifies initial
actions within existing statutes and
authorities to help integrate climate
change adaptation considerations into
FEMA programs. Further, the
President’s Climate Action Plan,
released in June 2013, identifies three
major initiatives to prepare the United
States for the impacts of climate change
by building stronger and safer
communities and infrastructure,
protecting our economy and natural
resources, and using sound science to
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manage climate impacts. FEMA is
committed to working with partners to
improve the relevance and effectiveness
of mitigation planning to increase the
Nation’s resilience through
improvements to policy, guidance,
training, technical assistance, as well as
other products.
FEMA encourages States to fully
engage in the mitigation planning
process and, as stated in 44 CFR
201.4(b), to include coordination with
other State agencies, appropriate
Federal agencies, and interested groups.
FEMA also encourages States to
integrate their mitigation planning to
the extent possible with other ongoing
State planning efforts and other FEMA
mitigation programs and initiatives. By
fully leveraging the mitigation planning
process, States may be better able to
identify and incorporate the best
available data, studies, and models to
assess changes in current and future
hazards as well as development patterns
that may impact vulnerability. Further,
States may be better able to develop and
implement a plan maintenance process
that ensures plan relevance over time.
The accuracy and relevance of the plan
are important elements to ensure that
resources are wisely invested in
implementing measures to reduce risk
from future events. As stated in the
NPRM and the planning regulations at
44 CFR 201.4(a), the mitigation plan is
the demonstration of the State’s
commitment to reduce risks from
natural hazards and serves as a guide for
State decision makers as they commit
resources to reducing the effects of
natural hazards.
The comment suggests that FEMA
initiate another rulemaking requiring
States to address climate change in State
Mitigation Plans. The current regulation
requires the State to include information
on future hazard events in its Mitigation
Plan and allows the State discretion
whether to address climate change. 44
CFR 201.4(c)(2)(i).
The comment also encourages FEMA
to implement an ‘‘administrative
trigger’’ meaning that following a ‘‘major
climate-sensitive hazard event,’’ if the
plan did not adequately address climate
change, the State would be required to
initiate an update; and if the State did
not incorporate new information into
the plan, FEMA hazard mitigation
funding should be withheld. FEMA
encourages States to review the plan
after disasters and update, if needed, to
reflect changes in priorities. States may
also consider use of FEMA’s Hazard
Mitigation Grant Program planning
grants for planning related activities to
update risk assessments after
catastrophic events. FEMA will work
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with States post disaster, based on
availability of resources and funding, to
review the State Mitigation Plan, in
particular the risk assessment and
mitigation strategies, to guide
implementation of mitigation actions
and the development of a recovery
strategy as outlined in the National
Disaster Recovery Framework.
Requiring plan updates using an
administrative trigger would require a
change to the mitigation planning
regulation. FEMA has chosen not to
initiate another rulemaking to
implement an administrative trigger, so
as not to increase the burden on States
and FEMA, but will continue to monitor
the necessity of initiating another
rulemaking requiring States to review
the plan after disasters and update, if
needed, to reflect changes in priorities.
As previously stated in the preamble,
the vast majority of respondents
supported the regulatory change
proposed in the March 1, 2013 NPRM;
therefore, FEMA is adopting as final the
NPRM (78 FR 13844, Mar. 1, 2013)
without change.
E. Implementation
The Standard State Mitigation Plan
and the Enhanced State Mitigation Plan
updates will be due 5 years from the
date of the approval of the previous
plan.
III. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 12866, ‘‘Regulatory Planning and
Review’’ (58 FR 51735, Oct. 4, 1993) as
supplemented by Executive Order
13563, ‘‘Improving Regulation and
Regulatory Review’’ (76 FR 3821, Jan.
21, 2011). This Final Rule is not a
significant regulatory action, and
therefore has not been reviewed by the
Office of Management and Budget
(OMB).
This portion of the preamble
summarizes FEMA’s analysis of the
economic impacts of this Final Rule.
However, readers seeking greater detail
are encouraged to read the full
regulatory evaluation, a copy of which
FEMA has placed in the docket for this
rulemaking.
In conducting the aforementioned
analyses, FEMA has determined that the
Final Rule: (1) Has benefits that justify
its costs; (2) is not an economically
‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866; (3) will not have a
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significant economic impact on a
substantial number of small entities;
and (4) will not impose an unfunded
mandate on State, local, or Tribal
governments, or on the private sector by
exceeding $100 million or more
annually (adjusted for inflation with a
base year of 1995). These analyses are
summarized below.
Who Is Potentially Affected by This
Rule
The Final Rule will affect States that
choose to submit updated Standard
State Mitigation Plans or Enhanced
State Mitigation Plans to FEMA for
approval, and Indian Tribal
governments that choose to meet the
requirements for Enhanced State
Mitigation Plans in order to qualify for
increased HMGP funding.
Savings to Society of This Rule
The cost to update a State’s Mitigation
Plan is unique to that respective State.
However, for the purposes of this
analysis, FEMA estimates an average
Standard State Mitigation Plan update
unit cost of $205,000 and an Enhanced
State Mitigation Plan update unit cost of
$524,000.5 FEMA also assumes that 46
States would submit Standard State
Mitigation Plans and 10 States would
submit Enhanced State Mitigation Plans.
FEMA will also incur costs to review
State Mitigation Plans. FEMA estimates
that a General Schedule 13, Step 1,
Federal employee, at a fully loaded
wage of $48.08 ($34.34*1.4 = $48.076)
will spend 120 hours reviewing a
Standard or Enhanced State Mitigation
Plan. The resulting FEMA review cost
per plan is $5,770 (120 hours * $48.08
per hour = $5,769.60).
Therefore, the cost of State Mitigation
Plan updates in a given year, where all
5 These plan update costs reflect cost and burden
estimates in section III. D. (‘‘Paperwork Reduction
Act (PRA) of 1995’’). In section III. D., ‘‘hour
burden’’ in Table 3 is calculated by taking 23
percent of the State Mitigation Plan update cost,
which represents personnel costs, and dividing it
by the estimated Urban and Regional Planners wage
rate of $45.33. This equates to 1,040 hours
(($205,000 × 0.23)/$45.33 = 1,040.15) for Standard
State Mitigation Plan updates and 2,659 hours
(($524,000 × 0.23)/$45.33 = 2,658.72) for Enhanced
State Mitigation Plan updates. Additionally, 66
percent of the State Mitigation Plan update cost
represents contracting costs and 11 percent of the
State Mitigation Plan update cost represents nonlabor costs (for both standard and enhanced plan
updates). The contracting and non-labor costs are
used to estimate the ‘‘cost burden’’ in Table 4
below. For Standard State Mitigation Plan updates,
this equates to $135,300 ($205,000 × 0.66 =
$135,300) ‘‘annual operations and maintenance
costs’’ and $22,550 ($205,000 × 0.11 = $22,550) for
‘‘annual non-labor costs’’. For Enhanced State
Mitigation Plan updates, this equates to $345,840
($524,000 × 0.66 = $345,840) ‘‘annual operations
and maintenance costs’’ and $57,640 ($524,000 ×
0.11 = $57,640) for ‘‘annual non-labor costs’’.
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updates are submitted, is approximately
$15 million (($205,000 + $5,770)*46 +
($524,000 + $5,770)*10 = $14,993,120).
The extension of the State Mitigation
Plan update frequency from 3 to 5 years
will reduce the number of State
Mitigation Plan updates submitted by 2
over 15 years. The resulting
undiscounted total cost savings is
approximately $30 million over 15 years
($14,993,120 * 2 = $29,986,240); or,
$18.8 million total cost savings over 15
years if discounted at 7 percent. The
annual impact of this rule is
approximately $2 million undiscounted
($29,986,240 ÷ 15 = $1,999,083) and
$2.06 million annualized at 7 percent.6
Benefits of This Rule
The Final Rule will provide a number
of unquantified benefits including
aligning the State Mitigation Plan
update cycle with the Local and Tribal
Mitigation Plan update cycle and
providing greater flexibility for States to
submit their State Mitigation Plan
updates. The rule will also provide an
opportunity for States to apply cost
savings from the reduction in State
Mitigation Plan update frequency to
other means of increasing resilience and
reducing the Nation’s risk to natural
hazards.
WREIER-AVILES on DSK5TPTVN1PROD with RULES
Significance Determination
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has not been designated a ‘‘significant
regulatory action,’’ under section 3(f) of
Executive Order 12866. Accordingly,
the Office of Management and Budget
has not reviewed this rule.
The rule is estimated to have a net
quantified undiscounted savings to
society of approximately $30 million
over 15 years. The annual impact of this
rule is an estimated net quantified
savings to society of approximately $2
6 In Appendix A of the Regulatory Evaluation
available in the docket, FEMA includes estimated
annualized costs at three and seven percent
according to guidance in OMB Circular A–4 (page
45). Office of Management and Budget, Published
September 17, 2003. Available at: https://
www.whitehouse.gov/sites/default/files/omb/assets/
omb/circulars/a004/a-4.pdf.
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million undiscounted ($1,999,083) and
$2.06 million annualized at 7 percent.
Retrospective Review
To facilitate the periodic review of
existing significant regulations,
Executive Order 13563 requires agencies
to consider how best to promote
retrospective analysis of rules that may
be outmoded, ineffective, insufficient,
or excessively burdensome, and to
modify, streamline, expand, or repeal
them in accordance with what has been
learned. The Executive Order requires
agencies to issue a retrospective review
plan, consistent with law and the
agency’s resources and regulatory
priorities, under which the agency will
periodically review its existing
significant regulations to determine
whether any such regulations should be
modified, streamlined, expanded, or
repealed so as to make the agency’s
regulatory program more effective or
less burdensome in achieving the
regulatory objectives.
DHS issued its ‘‘Final Plan for the
Retrospective Review of Existing
Regulations’’ (Plan) on August 22, 2011.
The Plan can be found on the DHS Open
Government Web site at https://
www.dhs.gov/xlibrary/assets/dhs-ogcfinal-retrospective-review-plan-8-22-11final.pdf. DHS originally included this
rule in the Plan as a long-term
retrospective review candidate, meaning
the agency would undertake
retrospective review of the regulation
within 3 years of the date of the Plan.
The Plan stated that FEMA would
consider whether it would be more
efficient to extend the review period to
5 years for each of the plans as
requested by public commenters. DHS
later moved this rule (1660–AA77) to its
list of current retrospective review
projects.
DHS publishes periodic updates on
the progress of its retrospective review
efforts. DHS published its most recent
update, ‘‘DHS Retrospective Review
Plan Report,’’ in January 2014. That
update can be found on the DHS Open
Government Web site at https://
www.dhs.gov/publication/dhs-january2014-retrospective-review-plan-report.
Review of FEMA’s existing Mitigation
Plan regulations revealed the potential
for State cost savings, approximately
$30 million over 15 years, as well as
other benefits. Therefore, FEMA is
extending the State Mitigation Plan
minimum update frequency from 3 to 5
years.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), FEMA evaluated
and considered whether this rule would
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22879
have a significant economic impact on
a substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
In the March 1, 2013 NPRM, FEMA
invited comments on the initial
Regulatory Flexibility Act (RFA)
determination. FEMA did not receive
any comments regarding the RFA
determination. As the Final Rule will
not result in additional costs, FEMA
does not anticipate that the rule will
have a significant economic impact on
a substantial number of small entities.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995, Public Law 104–4, 109 Stat. 48
(Mar. 22, 1995) (2 U.S.C. 1501 et seq.),
requires Federal agencies to assess the
effects of their discretionary regulatory
actions that may result in the
expenditure by a State, local, or Tribal
government, in the aggregate, or by the
private sector of $100,000,000 or more
in any one year. As the Final Rule will
not have an impact greater than
$100,000,000 or more in any one year,
it is not an unfunded Federal mandate.
D. Paperwork Reduction Act (PRA) of
1995
As required by the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13, 109 Stat. 163, (May 22,
1995) (44 U.S.C. 3501 et seq.), an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number.
In this Final Rule, FEMA is seeking a
revision to the already existing
collection of information identified as
OMB Control Number 1660–0062. This
revision reflects the reduction in the
annual cost burden to respondents or
recordkeepers resulting from the Final
Rule, as well as refinements to current
estimates in 1660–0062 based on
changes to the way cost burden is
reported under the PRA. Annual cost
burden was previously derived from
multiplying total annual burden hours,
based on subject matter expert average
hour estimates per mitigation plan, by
the associated wage rates. However,
FEMA has refined how it calculates
annual costs and now uses cost
estimates based on historical mitigation
plan grant data, which includes contract
support and other associated costs. This
Final Rule serves as the 30-day
comment period for this change
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pursuant to 5 CFR 1320.12. FEMA
invites the general public to comment
on the collection of information.
Collection of Information
Title: State/Local/Tribal Hazard
Mitigation Plans.
Type of information collection:
Revision of a currently approved
collection.
OMB Number: 1660–0062.
Form Titles and Numbers: None.
Abstract: The purpose of State, Local,
and Tribal Hazard Mitigation Plan
requirements is to support the FEMA
Mitigation grant programs, and a
significant State, local, and Tribal
commitment to mitigation activities,
comprehensive mitigation planning, and
strong program management.
Implementation of planned, preidentified cost-effective mitigation
measures will streamline the disaster
recovery process. Mitigation plans are
the demonstration of the goals and
priority to reduce risks from natural
hazards. This Final Rule revises FEMA
Mitigation Planning regulations in order
to reduce the frequency that
respondents submit Standard State and
Enhanced State Mitigation Plan updates
from 3 to 5 years. This change in
frequency will reduce 8,899 burden
hours on the public and save $1,350,580
annually in respondent burden costs.
Due to the change in reporting methods
described above, the base line numbers
have changed, resulting in an overall
increase in the estimated total annual
cost. This impact is separate from the
effect of the Final Rule.
Affected Public: State, local, or Tribal
Governments.
Estimated Number of Respondents: 56
States submit State Mitigation Plan
updates to FEMA. (There are 56 States,
per the definition of State at 44 CFR
201.2.) In addition, those 56 States also
review and submit Local and Tribal
Mitigation Plans and plan updates to
FEMA.
Estimated Total Annual Burden
Hours: 227,366 hours.
The previously approved Total
Annual Burden Hours was 768,320
hours. Based on adjustments to how this
burden was estimated (see Information
Collection Request for details) and the
rule’s reduction in burden, the new
estimated Total Annual Burden Hours is
227,366 hours. This is a decrease of
540,954 hours, of which approximately
8,899 hours are attributed to the change
in State Mitigation Plan update
frequency. However, some of the burden
hours previously accounted for likely
reflected some of the costs, including
contract support, now included in the
separately-reported categories under
total annual cost burden.
Table 3 provides estimates of
annualized cost to respondents for the
hour burdens for the collection of
information.
TABLE 3
Total number
of responses 2
Average
burden
per
response
(hours)
5
280
289
80,920
$45.33
$3,668,104
56
9
504
249
125,496
45.33
5,688,734
56
14
784
8
6,272
45.33
284,310
Type of
respondent
Form name/form
number
Local or Tribal
Government.
Local or Tribal
Government.
State Government
New Local and
Tribal Plans.
Local and Tribal
Plan Updates.
State Review of
Local and Tribal
Plans.
Standard State
Plan Updates.
Enhanced State
Plan Updates.
..............................
Number of
responses per
respondent 1
56
State Government
State Government
Total ..............
Number of
respondents
Total
annual
burden
(hours)
Average
hourly
wage
rate 3
Total annual
respondent
cost 4
46
0.2
9
1,040
9,360
45.33
424,289
10
0.2
2
2,659
5,318
45.33
241,065
56
..........................
1,579
................
227,366
................
10,306,502
1 Standard
State Plan Updates and Enhanced State Plan Updates Number of Responses per Respondent represents an annual average over
5 years (1 plan update/5 years = 0.2).
2 Standard State Plan Updates Total Number of Responses is rounded to the nearest plan.
3 The ‘‘Avg. Hourly Wage Rate’’ for each respondent includes a 1.4 multiplier to reflect a loaded wage rate and rounded to the nearest cent.
4 Rounded to the nearest dollar.
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Estimated Total Annual Cost:
$33,532,730.
The previously approved Total
Annual Cost was $33,452,652. Based on
adjustments to how this cost was
estimated (see Information Collection
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Request for details) and the rule’s
reduction in cost, the new estimated
Total Annual Cost is $33,532,730. This
is an increase of $80,078. This includes
a $1,350,580 reduction in cost attributed
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to the change in State Mitigation Plan
update frequency.
Table 4 provides estimates of total
annual cost burden to respondents or
recordkeepers resulting from the
collection of information.
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22881
TABLE 4
Data collection activity/
instrument
* Annual capital
start-up cost
(investments in
overhead,
equipment and
other one-time
expenditures)
* Annual
operations and
maintenance
cost
(such as
recordkeeping,
technical/professional services,
etc.)
Annual non-labor
cost
(expenditures on
training, travel
and other
resources)
Total annual cost
to respondents
Development of New Local and Tribal Plans ..................................
Local and Tribal Plan Updates ........................................................
State Review of Local and Tribal Plans ..........................................
Standard State Mitigation Plan Updates .........................................
Enhanced State Mitigation Plan Updates ........................................
$12,289,200
............................
............................
............................
............................
............................
$16,299,360
............................
1,217,700
691,680
............................
$2,716,560
............................
202,950
115,280
$12,289,200
19,015,920
0
1,420,650
806,960
Total ..........................................................................................
12,289,200
18,208,740
3,034,790
33,532,730
WREIER-AVILES on DSK5TPTVN1PROD with RULES
Overall Estimated Total Cost:
$43,839,232.
The overall estimated cost of this
collection is $43,839,232 ($10,306,502 +
$33,532,730). This is an increase of
$10,386,580 ($33,452,652—$43,839,232)
from the currently approved OMB
inventory.
E. National Environmental Policy Act
(NEPA) of 1969
Section 102 of the National
Environmental Policy Act of 1969
(NEPA), Public Law 91–190, 83 Stat.
852 (Jan. 1, 1970) (42 U.S.C. 4321 et
seq.) requires agencies to consider the
impacts in their decision-making on the
quality of the human environment. The
Council on Environmental Quality’s
procedures for implementing NEPA, 40
CFR 1500 et seq., require Federal
agencies to prepare Environmental
Impact Statements (EIS) for major
federal actions significantly affecting the
quality of the human environment. Each
agency can develop categorical
exclusions to cover actions that
typically do not trigger significant
impacts to the human environment
individually or cumulatively. Agencies
develop environmental assessments
(EA) to evaluate those actions that do
not fit an agency’s categorical exclusion
and for which the need for an EIS is not
readily apparent. At the end of the EA
process the agency will determine
whether to make a Finding of No
Significant Impact or whether to initiate
the EIS process.
Rulemaking is a major federal action
subject to NEPA. The List of exclusion
categories at 44 CFR 10.8(d)(2)(ii)
excludes the preparation, revision, and
adoption of regulations from the
preparation of an EA or EIS, where the
rule relates to actions that qualify for
categorical exclusions. The
development of plans under 44 CFR part
201 is categorically excluded under 44
CFR 10.8(d)(2)(iii) and (xviii)(E). No
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extraordinary circumstances exist that
will trigger the need to develop an EA
or EIS. See 44 CFR 10.8(d)(3). An EA
will not be prepared because a
categorical exclusion applies to this
rulemaking action and no extraordinary
circumstances exist.
F. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, ‘‘Consultation
and Coordination With Indian Tribal
Governments,’’ 65 FR 67249, November
9, 2000, applies to agency regulations
that have Tribal implications, that is,
regulations that have substantial direct
effects on one or more Indian tribes, on
the relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. Under
this Executive Order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has Tribal implications, that
imposes substantial direct compliance
costs on Indian Tribal governments, and
that is not required by statute, unless
funds necessary to pay the direct costs
incurred by the Indian Tribal
government or the Tribe in complying
with the regulation are provided by the
Federal Government, or the agency
consults with Tribal officials.
This Final Rule revises FEMA’s
Mitigation Planning regulations in order
to reduce the frequency of Standard
State and Enhanced State Mitigation
Plan updates from 3 to 5 years. Tribal
Mitigation Plan updates are already
required every 5 years; however, in
accordance with 44 CFR 201.3(e)(3),
Indian Tribal governments are
potentially eligible to act as grantee and
qualify for increased HMGP funding by
submitting an Enhanced Mitigation
Plan. Indian Tribal governments that
wish to submit an Enhanced Mitigation
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Plan are required to update that plan
every 3 years; the Final Rule will reduce
that frequency to every 5 years. For
these reasons, this rule may have ‘‘tribal
implications’’ as defined in the
Executive Order. Submission of the
plan, however, is voluntary, and
changing the frequency of the plan from
3 to 5 years will not impose direct
compliance costs on Indian Tribal
governments. Therefore, FEMA finds
that this Final Rule complies with
Executive Order 13175.
G. Executive Order 13132, Federalism
A rule has implications for federalism
under Executive Order 13132,
‘‘Federalism’’ (64 FR 43255, Aug. 10,
1999), if it has a substantial direct effect
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. Under this
Executive Order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has federalism implications, that
imposes substantial direct compliance
costs on State and local governments,
and that is not required by statute,
unless funds necessary to pay the direct
costs incurred by the State and local
governments in complying with the
regulation are provided by the Federal
Government, or the agency consults
with State and local officials. FEMA has
analyzed this Final Rule under the
Executive Order and determined that it
does not have implications for
federalism.
This Final Rule revises FEMA’s
Mitigation Planning regulations in order
to reduce the frequency of Standard
State and Enhanced State Mitigation
Plan updates, extending the update
requirement from 3 to 5 years. FEMA
has received substantial input
requesting that FEMA change its
Mitigation Planning regulations to
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reduce the frequency of Standard State
and Enhanced State Mitigation Plan
updates. Some of those requests have
come from State officials.
The Standard State and Enhanced
State Mitigation Plan updates are
voluntarily submitted by States. Per
DMA 2000, Mitigation Plans are a
condition of receipt of increased Federal
funding for hazard mitigation measures.
If a State chooses not to comply with the
regulations in 44 CFR part 201, it still
will be eligible for limited emergency
assistance under the Stafford Act. (See
42 U.S.C. 5170a, 5170b, 5173, 5174,
5177, 5179, 5180, 5182, 5183, 5184, and
5192).
WREIER-AVILES on DSK5TPTVN1PROD with RULES
H. Executive Order 12630, Taking of
Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, ‘‘Governmental Actions
and Interference With Constitutionally
Protected Property Rights’’ (53 FR 8859,
Mar. 18, 1988).
I. Executive Order 12898,
Environmental Justice
Under Executive Order 12898, as
amended, ‘‘Federal Actions To Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, Feb. 16,
1994), FEMA incorporates
environmental justice into its policies
and programs. Executive Order 12898
requires each Federal agency to conduct
its programs, policies, and activities that
substantially affect human health or the
environment, in a manner that ensures
that those programs, policies, and
activities do not have the effect of
excluding persons from participation in,
denying persons the benefit of, or
subjecting persons to discrimination
because of their race, color, or national
origin or income level.
This rule relates to the
implementation of section 322 of the
Stafford Act (42 U.S.C. 5165). Section
322 focuses specifically on mitigation
planning to identify the natural hazards,
risks, and vulnerabilities of areas in
States, localities, and Tribal areas;
development of Local Mitigation Plans;
technical assistance to local and Tribal
governments for mitigation planning;
and identifying and prioritizing
mitigation actions that the State will
support as resources become available.
The reduction in burden from the
update frequency may allow States to
focus on implementing additional
mitigation actions identified through the
planning process as a means to increase
resilience and reduce the Nation’s risk
to natural hazards; thereby also
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protecting human lives and the
environment. No action that FEMA can
anticipate under this rule will have a
disproportionately high and adverse
human health or environmental effect
on any segment of the population.
J. Executive Order 12988, Civil Justice
Reform
This Final Rule meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, ‘‘Civil Justice
Reform’’ (61 FR 4729, Feb. 7, 1996), to
minimize litigation, eliminate
ambiguity, and reduce burden in the
federal court system.
K. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
This Final Rule will not create
environmental health risks or safety
risks for children under Executive Order
13045, ‘‘Protection of Children From
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, Apr. 23, 1997).
L. Executive Order 11988, Floodplain
Management
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 11988, as amended, ‘‘Floodplain
Management’’ (42 FR 26951, May 25,
1977). The regulations at 44 CFR part 9
set forth FEMA’s policy, procedures,
and responsibilities in implementing
this Executive Order. In summary, these
are, to the greatest possible degree: to
avoid long and short term adverse
impacts associated with the occupancy
and modification of floodplains; avoid
direct and indirect support of floodplain
development whenever there is a
practical alternative; reduce the risk of
flood loss; promote the use of
nonstructural flood protection methods
to reduce the risk of flood loss;
minimize the impacts of floods on
human health, safety and welfare;
restore and preserve the natural and
beneficial values served by floodplains;
and adhere to the objectives of the
Unified National Program for
Floodplain Management.
As stated in the preamble, the
planning process provides a link
between State, Tribal and local
mitigation programs. Both State level
and local plans should address
strategies for incorporating post-disaster
early mitigation implementation
strategies and sustainable recovery
actions. FEMA also recognizes that
governments are involved in a range of
planning activities and that mitigation
plans may be linked to or reference
comprehensive plans, land use plans,
master plans, and other non-natural
hazard plans. Improved mitigation
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planning will result in a better
understanding of risks and
vulnerabilities, as well as expediting
implementation of measures and
activities to reduce those risks, both preand post-disaster. This Final Rule
revises FEMA’s Mitigation Planning
regulations in order to reduce the
frequency of Standard State and
Enhanced State Mitigation Plan updates
by extending the update requirement
from 3 to 5 years. The change aligns the
State update requirements with local
and Tribal Mitigation Plan update
requirements, which does not conflict
with the intent of the Executive Order.
M. Congressional Review Act
FEMA has sent this Final Rule to the
Congress and to the Government
Accountability Office under the
Congressional Review of Agency
Rulemaking Act, (‘‘Congressional
Review Act’’), Public Law 104–121, 110
Stat. 873 (Mar. 29, 1996) (5 U.S.C. 804).
This rule is not a ‘‘major rule’’ within
the meaning of the Congressional
Review Act.
List of Subjects in 44 CFR Part 201
Administrative practice and
procedure, Disaster assistance, Grant
programs, and Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, amend part 201 of title 44 of
the Code of Federal Regulations as
follows:
PART 201—MITIGATION PLANNING
1. The authority citation for part 201
continues to read as follows:
■
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5207; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; Homeland Security Act of
2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376; E.O. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.
2. In § 201.3, revise paragraphs (b)(5),
(c)(2), and (c)(3), and the second
sentence of paragraph (e)(3) to read as
follows:
■
§ 201.3
Responsibilities.
*
*
*
*
*
(b) * * *
(5) Conduct reviews, at least once
every 5 years, of State mitigation
activities, plans, and programs to ensure
that mitigation commitments are
fulfilled, and when necessary, take
action, including recovery of funds or
denial of future funds, if mitigation
commitments are not fulfilled.
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(c) * * *
(2) In order to be considered for the
20 percent HMGP funding, prepare and
submit an Enhanced State Mitigation
Plan in accordance with § 201.5, which
must be reviewed and updated, if
necessary, every 5 years from the date
of the approval of the previous plan.
(3) At a minimum, review and update
the Standard State Mitigation Plan every
5 years from the date of the approval of
the previous plan in order to continue
program eligibility.
*
*
*
*
*
(e) * * *
(3) * * * The plan must be reviewed
and updated at least every 5 years from
the date of approval of the previous
plan.
DEPARTMENT OF COMMERCE
3. In § 201.4, revise the first sentence
of paragraph (d) to read as follows:
SUMMARY:
■
§ 201.4
Standard State Mitigation Plans.
*
*
*
*
*
(d) * * * Plan must be reviewed and
revised to reflect changes in
development, progress in statewide
mitigation efforts, and changes in
priorities and resubmitted for approval
to the appropriate Regional
Administrator every 5 years. * * *
4. In § 201.5, revise the third sentence
of paragraph (a), revise the first sentence
of paragraph (c)(1), and revise (c)(2) to
read as follows:
■
WREIER-AVILES on DSK5TPTVN1PROD with RULES
§ 201.5
Enhanced State Mitigation Plans.
(a) * * * In order for the State to be
eligible for the 20 percent HMGP
funding, FEMA must have approved the
plan within 5 years prior to the disaster
declaration.
*
*
*
*
*
(c) * * *
(1) A State must review and revise its
plan to reflect changes in development,
progress in statewide mitigation efforts,
and changes in priorities, and resubmit
it for approval to the appropriate
Regional Administrator every 5 years.
* * *
(2) In order for a State to be eligible
for the 20 percent HMGP funding, the
Enhanced State Mitigation plan must be
approved by FEMA within the 5 years
prior to the current major disaster
declaration.
Dated: April 17, 2014.
W. Craig Fugate,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2014–09461 Filed 4–24–14; 8:45 am]
BILLING CODE 9111–66–P
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National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 121004518–3398–01]
RIN 0648–XD033
Reef Fish Fishery of the Gulf of
Mexico; 2014 Recreational
Accountability Measure and Closure
for Gray Triggerfish in the Gulf of
Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS implements an
accountability measure (AM) for
recreational gray triggerfish in the Gulf
of Mexico (Gulf) reef fish fishery for the
2014 fishing year through this
temporary final rule. Based on the 2013
recreational annual catch limit (ACL)
overage, NMFS reduces the 2014
recreational annual catch target (ACT)
and ACL for gray triggerfish to 0 lb (0
kg) through this temporary rule.
Therefore, NMFS closes the recreational
sector for gray triggerfish in the Gulf
EEZ at 12:01 a.m., local time, May 1,
2014, until January 1, 2015. This action
is necessary to reduce overfishing of the
Gulf gray triggerfish resource.
DATES: This rule is effective 12:01 a.m.,
local time, on May 1, 2014, until 12:01
a.m., local time, on January 1, 2015,
unless changed by subsequent
notification in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Rich
Malinowski, Southeast Regional Office,
telephone 727–824–5305, email
rich.malinowski@noaa.gov.
SUPPLEMENTARY INFORMATION: The reef
fish fishery of the Gulf, which includes
gray triggerfish, is managed under the
Fishery Management Plan for the Reef
Fish Resources of the Gulf of Mexico
(FMP). The FMP was prepared by the
Council and is implemented through
regulations at 50 CFR part 622 under the
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act). All
weights specified in this rule are round
weight.
The final rule for Amendment 37 to
the FMP (78 FR 27084, May 9, 2013)
implemented the Gulf gray triggerfish
recreational ACL of 241,200 lb (109,406
kg), and the recreational ACT of 217,100
lb (98,475 kg), as specified in 50 CFR
622.41(b)(2)(iii).
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22883
The final rule for Amendment 37 to
the FMP implemented an in-season AM
to close the recreational sector when its
ACT is reached or projected to be
reached, as specified in 50 CFR
622.41(b)(2)(i), and implemented a postseason AM in the form of an overage
adjustment that would apply if the
recreational ACL is exceeded and gray
triggerfish are overfished, as specified in
50 CFR 622.41(b)(2)(ii). This post-season
AM reduces the recreational ACL and
ACT for the year following a
recreational ACL overage by the amount
of the ACL overage in the prior fishing
year, unless the best scientific
information available determines that a
greater, lesser, or no overage adjustment
is necessary.
NMFS determined that the 2013
recreational landings were 524,606 lb
(237,957 kg), which exceeded the 2013
recreational ACT by 307,506 lb (139,482
kg) and the 2013 recreational ACL by
283,406 lb (128,551 kg). Therefore,
NMFS implements a post-season AM for
recreational gray triggerfish in the Gulf
for the 2014 fishing year through this
temporary final rule. Based on the 2013
overage of 283,406 lb (128,551 kg),
NMFS reduces the 2014 recreational
ACT from 217,100 lb (98,475 kg), to 0
lb (0 kg) and the 2014 recreational ACL
from 241,200 lb (109,406 kg) to 0 lb (0
kg).
Based on the adjusted 2014
recreational ACT of 0 lb (0 kg), for Gulf
gray triggerfish, NMFS implements the
in-season AM to close the recreational
harvest of Gulf gray triggerfish at 12:01
a.m., local time, on May 1, 2014, until
12:01 a.m., local time on January 1,
2015, unless changed by subsequent
notification in the Federal Register.
During the closure, the bag and
possession limit of gray triggerfish in or
from the Gulf EEZ is zero. This bag and
possession limit applies in the Gulf on
board a vessel for which a valid Federal
charter vessel/headboat permit for Gulf
reef fish has been issued, without regard
to where such species were harvested,
i.e. in state or Federal waters. The
recreational sector for gray triggerfish
will reopen on January 1, 2015, the
beginning of the 2015 recreational
fishing season.
Classification
The Regional Administrator,
Southeast Region, NMFS, has
determined this temporary rule is
necessary for the conservation and
management of Gulf gray triggerfish and
is consistent with the MagnusonStevens Act and other applicable laws.
This action is taken under 50 CFR
622.41(b)(2) and is exempt from review
under Executive Order 12866.
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]]>Agencies
[Federal Register Volume 79, Number 80 (Friday, April 25, 2014)]
[Rules and Regulations]
[Pages 22873-22883]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09461]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 201
[Docket ID: FEMA-2012-0001]
RIN 1660-AA77
Change in Submission Requirements for State Mitigation Plans
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This Final Rule revises the Federal Emergency Management
Agency
[[Page 22874]]
(FEMA) regulations by changing submission requirements for State
Mitigation Plans. This Final Rule reduces the frequency by which States
must submit updates to FEMA on their State Mitigation Plans.
Previously, these entities prepared and submitted updates with FEMA for
review and approval every 3 years. Now, these entities will prepare and
submit updates with FEMA for review and approval every 5 years.
DATES: Effective May 27, 2014. Comments regarding the information
collection must be submitted on or before May 27, 2014.
ADDRESSES: Comments and related materials are available online by going
to www.regulations.gov, and inserting FEMA-2012-0001 in the ``Search''
box, and then clicking ``Search''.
Submit written comments on the information collection to the Office
of Information and Regulatory Affairs, Office of Management and Budget.
Comments should be addressed to the Desk Officer for the Department of
Homeland Security, Federal Emergency Management Agency, and sent via
electronic mail to oira.submission@omb.eop.gov or faxed to (202) 395-
5806.
FOR FURTHER INFORMATION CONTACT: Doug Bellomo, Division Director, Risk
Analysis Division, Federal Insurance and Mitigation Administration,
DHS/FEMA, 1800 South Bell Street, Arlington, VA 20598-3030. Phone:
(202) 646-2903. Facsimile: (202) 646-2787. Email:
doug.bellomo@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Abbreviations
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
DMA 2000--Disaster Mitigation Act of 2000
EA--Environmental Assessment
EIS--Environmental Impact Statement
FEMA--Federal Emergency Management Agency
FMA--Flood Mitigation Assistance
HMA--Hazard Mitigation Assistance
HMGP--Hazard Mitigation Grant Program
IFR--Interim Final Rule
NEMA-- National Emergency Management Association
NEPA--National Environmental Policy Act of 1969
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PDM--Pre-Disaster Mitigation
PRA--Paperwork Reduction Act of 1995
RIN--Regulatory Identifier Number
Stafford Act--Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as amended
Table of Contents
I. Basis and Purpose
II. Background
A. Disaster Mitigation Act of 2000
B. Hazard Mitigation Assistance
C. Regulatory History
D. Discussion of Public Comments and Final Rule
E. Implementation
III. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review and
Executive Order 13563, Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act (PRA) of 1995
E. National Environmental Policy Act (NEPA) of 1969
F. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13132, Federalism
H. Executive Order 12630, Taking of Private Property
I. Executive Order 12898, Environmental Justice
J. Executive Order 12988, Civil Justice Reform
K. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
L. Executive Order 11988, Floodplain Management
M. Congressional Review Act
I. Basis and Purpose
This Final Rule will change the frequency of State Mitigation Plan
updates, by extending the update requirement for States from every 3
years to every 5 years. Currently, State, Tribal, and Local Mitigation
Plans submissions are on different schedules: Tribal and local
governments submit Mitigation Plan updates to FEMA every 5 years, while
States submit their mitigation plan updates--both the Standard and the
Enhanced Mitigation Plan \1\ updates--to FEMA every 3 years.\2\ The
Final Rule will put all State, Local, and Tribal Mitigation Plan
updates on the same schedule.
---------------------------------------------------------------------------
\1\ State Mitigation Plans are divided into tiers: Standard
State Mitigation Plans and Enhanced State Mitigation Plans. Enhanced
State Mitigation Plans have additional requirements and, for States
that comply with the additional requirements, allow for additional
disaster funding.
\2\ In addition to States, Tribal Governments can also submit
Enhanced State Mitigation Plans. This Final Rule reduces the
frequency for those Tribes who choose to submit Enhanced State
Mitigation Plans; FEMA will now require these updates every 5 years
(no longer every 3 years).
---------------------------------------------------------------------------
FEMA plans to change the frequency of the update requirement for
several reasons. First, the proposed reduction in update frequency will
reduce the regulatory burden on States as well as burden on FEMA.
Second, aligning the update frequency with local and Tribal update
requirements may foster closer coordination of mitigation planning and
implementation efforts. Third, by relieving the regulatory burden
imposed from the frequency of State plan updates, States and FEMA may
be able to shift resources from the update and review cycle to other
mitigation planning activities, such as increased delivery of training
and technical assistance to support local and Tribal Mitigation
Planning, and to implement additional mitigation actions identified
through the planning process.
II. Background
Hazard mitigation is any sustained action taken to reduce or
eliminate long-term risk to people and property from natural hazards
and their effects. The purpose of hazard mitigation planning is to
identify policies and actions that can be implemented over the long-
term to reduce risk and future losses. Mitigation plans form the
foundation for a community's long-term strategy to reduce disaster
losses and break the cycle of disaster damage, reconstruction, and
repeated damage. The planning process is as important as the plan
itself. It creates a framework for risk-based decision making to reduce
damage to lives, property, and the economy from future disasters.
State, Tribal, and local governments benefit from mitigation planning
by identifying publicly-accepted cost-effective actions for risk
reduction, focusing resources on the greatest risks and
vulnerabilities, and building partnerships by involving people,
organizations, and businesses. The planning process, and mitigation
plans, foster education and awareness of hazards and risk, communicate
priorities to State and Federal officials, and align risk reduction
with other community objectives, such as community development. State,
Tribal, and local governments are required to develop a hazard
mitigation plan as a condition for receiving certain types of Federal
non-emergency disaster assistance.
A. Disaster Mitigation Act of 2000
The Disaster Mitigation Act of 2000 (DMA 2000), Public Law 106-390,
114 Stat. 1552, amended the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act) and provided an opportunity for
States, Tribes, and local governments to take a new and revitalized
approach to mitigation planning. Section 104 of DMA 2000 continued the
requirement for a State mitigation plan as a condition of non-emergency
Stafford Act assistance and FEMA mitigation grants, and created
incentives for increased coordination and integration of mitigation
activities at the State level. DMA 2000 repealed section 409 of the
Stafford Act, which required mitigation plans and the use of minimum
standards, and replaced it with two separate sections of the law:
Mitigation
[[Page 22875]]
planning in section 322 (codified at 42 U.S.C. 5165), and minimum codes
and standards in section 323 (codified at 42 U.S.C. 5165a). FEMA
previously implemented section 409 through 44 CFR part 206, Subpart M.
The DMA 2000 planning requirements were placed in 44 CFR part 201 to
reflect the broader relevance of planning to all FEMA mitigation
programs, while the minimum codes and standards remained in 44 CFR part
206, Subpart M.
Section 104 of DMA 2000 and FEMA's implementing regulations
emphasize the need for State, Tribal, and local entities to closely
coordinate mitigation planning and implementation efforts. The planning
process provides a link between State, Tribal and local mitigation
programs. Both State level and local plans should incorporate
mitigation implementation strategies and sustainable recovery actions.
FEMA also recognizes that governments are involved in a range of
planning activities and that mitigation plans may be linked to or
reference hazardous materials and other non-natural hazard plans.
Improved mitigation planning will result in a better understanding of
risks and vulnerabilities, as well as expedite implementation of
measures and activities to reduce those risks, both pre- and post-
disaster.
DMA 2000 included a provision for increased Federal funding for
hazard mitigation measures for States with approved mitigation plans.
42 U.S.C. 5165(e). FEMA implemented this provision through development
of a new two-tiered State mitigation plan process: Standard State
Mitigation Plans, which allow a State to receive Hazard Mitigation
Grant Program (HMGP) funding ranging from 7.5 to 15 percent of disaster
grants awarded by FEMA, depending on the total estimated eligible
Stafford Act disaster assistance, 44 CFR 206.432(b)(1); and Enhanced
State Mitigation Plans, which allow a State to receive HMGP funds based
on 20 percent of the total estimated eligible Stafford Act disaster
assistance. 44 CFR 206.432(b)(2); 44 CFR 201.5. Enhanced State
Mitigation Plans must meet the requirements for Standard State
Mitigation Plans at 44 CFR 201.4 and must demonstrate further that the
State has developed a comprehensive mitigation program, that it
effectively uses available mitigation funding, and that it is capable
of managing the increased funding. 44 CFR 201.5.
B. Hazard Mitigation Assistance
FEMA Hazard Mitigation Assistance (HMA) grant programs provide
funding for eligible mitigation activities that reduce disaster losses
and protect life and property from future disaster damages. In general,
under each of the three HMA programs, the update of State mitigation
plans is eligible for funding.
Currently, FEMA administers the following HMA grant programs:
HMGP assists in implementing long-term hazard mitigation
measures following Presidential disaster declarations. 44 CFR
206.434(c)(5)(iv). Funding is available to implement projects in
accordance with State, Tribal, and local priorities. 44 CFR 206.435.
HMGP grants may fund the updating of mitigation plans. 44 CFR 206.434.
States must have a FEMA-approved State (Standard or Enhanced)
Mitigation Plan at the time of the disaster declaration and at the time
HMGP funding is obligated to the Grantee to receive an HMGP award. 44
CFR 201.4(a) and 201.5(a).
Pre-Disaster Mitigation (PDM) provides funds on an annual
basis for hazard mitigation planning and the implementation of
mitigation projects prior to a disaster. 42 U.S.C. 5133. The goal of
the PDM program is to reduce overall risk to the population and
structures, while at the same time reducing reliance on Federal funding
from actual disaster declarations. 42 U.S.C. 5133. States must have a
FEMA-approved State (Standard or Enhanced) Mitigation Plan by the
application deadline and at the time of obligation of the grant funds.
44 CFR 201.4(a) and 201.5(a).
Flood Mitigation Assistance (FMA) Program provides funds
on an annual basis for flood mitigation planning and the implementation
of flood mitigation projects. 42 U.S.C. 4104c. The goal of the FMA
Program is to reduce or eliminate claims under the National Flood
Insurance Program. 44 CFR 78.1(b). The Biggert-Waters Flood Insurance
Reform Act of 2012, Public Law 112-141, 126 Stat. 916, eliminated the
Severe Repetitive Loss and the Repetitive Flood Claims programs and
changed the FMA program to assist mitigation of repetitive loss and
severe repetitive loss properties. States must have a FEMA-approved
State (Standard or Enhanced) Mitigation Plan by the application
deadline and at the time of obligation of the grant funds. 44 CFR
201.4(a) and 201.5(a).
FEMA-approved hazard mitigation plans developed under 44 CFR part
201 are used by FEMA to determine State and Tribal eligibility for
Stafford Act assistance, including HMGP and PDM grant funds, and for
FMA funding under the National Flood Insurance Act.
FEMA HMA grants are provided to eligible applicants (States/Tribes/
Territories) for eligible activities, who, in turn, provide subgrants
to local governments and other eligible entities. Subgrantees may be a
State agency, local government, private non-profit organization (for
HMGP only), or Indian Tribal government. The applicant selects and
prioritizes subapplications developed and submitted to them by
subapplicants. These subapplications are submitted to FEMA for
consideration of funding. An Indian Tribal government may have the
option to apply for HMA grants through the State as a subapplicant or
directly to FEMA as an applicant. Indian Tribal governments acting as a
subgrantee are accountable to the State grantee.
C. Regulatory History
FEMA's February 26, 2002 Interim Final Rule (IFR), entitled
``Hazard Mitigation Planning and Hazard Mitigation Grant Program,'' 67
FR 8844, implemented section 322 of the Stafford Act by adding a new
Part 201 to 44 CFR. The IFR required that Standard State Mitigation
Plans be updated by November 1, 2003 \3\ and resubmitted to the
appropriate Regional Director for approval every 3 years from the date
of the approval of the previous plan in order to continue program
eligibility. Additionally, the IFR provided criteria for Enhanced State
Mitigation Plans and required that for States to be eligible for the 20
percent HMGP funding, the Enhanced State Mitigation Plan must be
approved by FEMA within the 3 years prior to the current major disaster
declaration, and resubmitted for approval every 3 years. On October 31,
2007, FEMA published a Final Rule adopting, without substantive
changes, the requirements for hazard mitigation planning pursuant to
section 322 of the Stafford Act. 72 FR 61552.
---------------------------------------------------------------------------
\3\ An October 1, 2002 revision changed the date by which the
Standard State Mitigation Plans had to be updated from November 1,
2003 to November 1, 2004. 67 FR 61512. A subsequent revision
provided for a 6-month extension, up to May 1, 2005, at the request
of the Governor or Indian Tribal leader. 69 FR 55094.
---------------------------------------------------------------------------
Table 1 displays the regulatory history for the mitigation planning
requirements listed in Sec. Sec. 201.3-201.5 for the Standard and
Enhanced State Mitigation Plan reporting requirements. Currently, these
Plans have to be updated every 3 years.
[[Page 22876]]
Table 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes to State
RIN Action Date Federal Register Effect on Sec. Sec. Mitigation Plan
citation 201.3, 201.4, & 201.5 requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
3067-AD22.......................... IFR................... 2/26/02 67 FR 8844............. Added Sec. Sec. States must have approved
201.3, 201.4, & 201.5. Standard State Mitigation
Plan by November 1, 2003
and every 3 years from
the date of the approval
of the previous plan.
Enhanced State Mitigation
Plans resubmitted to the
appropriate Regional
Director every 3 years.
For State to be eligible
for 20 percent HMGP
funding, the Enhanced
State Mitigation plan
must be approved by FEMA
within the 3 years prior
to current major disaster
declaration.
3067-AD22.......................... IFR................... 10/1/02 67 FR 61512............ Revised Sec. 201.3 Changed the requirement to
and Sec. 201.4. update the Standard State
Mitigation Plan to
November 1, 2004.
1660-AA17 \4\...................... IFR................... 9/13/04 69 FR 55094............ Added Sec. Allowed a 6 month
201.3(c)(7) & Revised extension to the deadline
Sec. 201.4. for the Standard State
Mitigation Plan, up to
May 1, 2005.
1660-AA17.......................... Final Rule............ 10/31/07 72 FR 61552............ Finalized Part 201.... Corrected a typographical
error in 201.4(c)(2)(ii).
1660-AA36.......................... IFR................... 10/31/07 72 FR 61720............ Revised Sec. 201.3.. Removed references to
November 1, 2004 deadline
and made technical
corrections.
1660-AA36.......................... Final Rule............ 9/16/09 74 FR 47471............ Finalized Sec. 201.3 No changes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\4\ The RIN changed from 3067-AD22 to 1660-AA17, as a result of FEMA becoming a component of the Department of Homeland Security.
D. Discussion of Public Comments and Final Rule
On March 1, 2013, FEMA published the ``Change in Submission
Requirements for State Mitigation Plans'' Notice of Proposed Rulemaking
(NPRM) at 78 FR 13844. The NPRM proposed to reduce the frequency of
Standard State and Enhanced State Mitigation Plan updates by extending
the update requirement from 3 to 5 years.
The comment period closed on April 30, 2013. FEMA received twenty-
three comments in response to the NPRM. Of the 23 comments received, 21
comments were supportive, 1 comment was opposed, and 1 comment was not
germane. Following is a discussion of the comments submitted.
The 21 comments submitted in support of the NPRM came from a
variety of sources, including State and local governments,
associations, and commenters that chose to remain anonymous. Many of
the supportive comments cited reasons consistent with the rationale
provided in the NPRM (78 FR 13847), such as:
reducing the regulatory burden on States and those Indian
Tribal governments that may choose to develop Enhanced Mitigation
Plans;
aligning with the local and Tribal Mitigation Plan update
requirements, which may foster closer coordination of mitigation
planning and implementation efforts; and
relieving the regulatory burden, so resources may be
shifted to other mitigation planning activities, such as increased
delivery of training and technical assistance, and/or to implementing
additional mitigation actions.
Several comments cited additional reasons in support of the NPRM,
such as:
maintaining or improving the quality of the plans and/or
program;
facilitating better data sharing;
improving integration and coordination with other planning
cycles; and
providing a more realistic time frame for implementation
of the mitigation plan.
Six comments referenced or included information regarding costs for
mitigation plan updates. Such mitigation plan update cost estimates
were consistent with the estimates FEMA used to calculate the impacts
of the rule.
One comment was supportive of the NPRM, provided that planners
remain engaged in mitigation planning and implementation, presuming a
best practice of annual review and evaluation. The current mitigation
planning regulation requires States to include a plan maintenance
process that establishes the method and schedule for monitoring,
evaluating, and updating the plan (44 CFR 201.4(c)(5)). Through
guidance, FEMA encourages, but does not require, States to perform an
annual evaluation of the plan, including any changes to the nature and
magnitude of hazards, as well as the effectiveness of programs,
policies, and projects.
While supportive of the NPRM, one comment indicated that a 7-year
cycle would be even better. Additional cost savings from a 7-year cycle
compared to a 5-year cycle is approximately $857,000 ($2,855,833
annualized 7-year cost savings -$1,999,083 annualized 5-year cost
savings = $856,750). The following table highlights costs over 3, 5,
and 7 years, as well as provides a comparison.
Table 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mitigation
State plan type plan update Update cost Update cost Update cost 7 years vs. 7 years vs. 5 years vs.
unit cost over 3 years over 5 years over 7 years 3 years 5 years 3 years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard Plan Update.................... $205,000 $68,333 $41,000 $29,286 -$39,047 -$11,714 -$27,333
[[Page 22877]]
Enhanced Plan Update.................... $524,000 $174,667 $104,800 $74,857 -$99,810 -$29,943 -$69,867
--------------------------------------------------------------------------------------------------------------------------------------------------------
Values rounded to nearest dollar which distorts overall reduction over time (e.g. 15 years, 21 years, 35 years).
FEMA acknowledges that additional cost savings may be realized from
a 7-year update cycle, but FEMA reaffirms the benefits of the 5-year
update cycle as stated in the NPRM that lengthening the State
Mitigation Plan update cycle to 5 years aligns with the local and
Tribal Mitigation Plan update requirements and may foster closer
coordination of mitigation planning and implementation efforts.
Further, as stated in the NPRM, stakeholders, such as the National
Emergency Management Association (NEMA) and Members of Congress, have
asked FEMA to amend 44 CFR Part 201 to extend the update cycle and have
consistently cited 5 years. The NPRM cited a letter dated November 8,
2011 from 23 Members of Congress stating:
[m]aintaining high quality up-to-date mitigation plans is a critical
component of our national disaster response plan. Extending the
update cycle to [5] years would ensure that our [S]tate planning
offices can complete this vital task, along with their other duties,
while maximizing available resources.
The NPRM also stated that in 2011, the Department of Homeland
Security (DHS) received public comments on the mitigation planning
regulations in response to a Federal Register notice published as part
of a retrospective review of its regulations. According to DHS's final
report titled ``Final Plan for the Retrospective Review of Existing
Regulations'' dated August 22, 2011 (See page 16),
DHS received a comment (the top-voted comment mentioned above)
recommending that DHS change the current FEMA State Standard and
Enhanced Hazard Mitigation Plan update requirement from every [3]
years to every [5] years so that it is consistent with current Local
Hazard Mitigation Plan update requirements. Commenters asserted that
[5] years would be an appropriate timeframe for [S]tate mitigation
plan updates for both efficiency and resource-limitation reasons.
Extending the update cycle from 3 to 7 years does not align with
the current local and Tribal mitigation planning 5-year update cycle.
Additionally, based on the majority of responses from stakeholders,
FEMA has chosen not to pursue the suggestion of extending the update
cycle from 3 to 7 years.
Only one comment, submitted by a non-profit environmental advocacy
organization, opposed the NPRM. The comment was submitted to the docket
in the form of a letter along with more than 90 individual documents
totaling almost 7,900 pages (after accounting for documents submitted
in multiple parts and elimination of duplication). The letter cited to
11 of the attachments that the commenter submitted to the docket by
footnoting them. Other than the letter, none of the supporting
attachments referenced the NPRM. As a result, no response is provided
to the attachments.
The remainder of this section will address the comment from the
non-profit environmental advocacy organization that opposed the NPRM
because, as it stated:
the extension is not accompanied by requirements to ensure the
quality of the State Mitigation Plans increases to compensate for
less frequent updates. FEMA must ensure that the State Mitigation
Plans are as effective and as timely as possible since hazard
mitigation planning is critical to reduce risks to the public and to
improve safety and health. To proceed with the proposed extension as
currently articulated is arbitrary, capricious, an abuse of
discretion and otherwise not in accordance with law.
The comment asserted that if the State Mitigation Plans do not
incorporate the most current climate change studies and modeling,
FEMA's NPRM would lead to plans losing relevance and becoming outdated
more quickly, due to climate change implications, and the quality of
hazard mitigation would suffer. The comment further stated that:
If the [S]tate update requirement is extended, FEMA should take
this opportunity to ensure that [S]tates use the extra [2] years to
significantly improve their plans, especially regarding climate
change. States tend to rely exclusively on historical data to
predict the probability of future hazard events, and determine
priorities for mitigation. Unfortunately, most [S]tates are not
incorporating climate change projections and therefore are not
maximizing accuracy of hazard predictions in risk assessments. FEMA
should only approve State Hazard Mitigation Plans that adequately
address climate change. FEMA also should provide agency guidance in
FEMA's Blue Book on how to incorporate climate change into such
plans. In addition to the current proposed rulemaking, FEMA should
also initiate another new rulemaking to amend 44 CFR Sec. 201.4, in
order to confirm that climate change must be addressed by [S]tates
in their hazard mitigation plans.
As stated in the NPRM, in order to be effective, plans must be
relevant. Therefore, 44 CFR 201.4(d) requires that the plans be
reviewed and revised to reflect changes in development, progress in
statewide mitigation efforts, and changes in priorities. Mitigation
planning is a continuous process of engaging stakeholders, identifying
hazards as conditions may change, assessing risk and vulnerabilities as
development patterns may change, and developing a strategy that can be
implemented using available resources, programs, and initiatives based
on current priorities.
The purpose of the NPRM is only to extend the update requirement
from 3 to 5 years and does not change the requirements for the content
of the Mitigation Plan. While section 201.4(c)(2) does not list or
require specific hazards be addressed in the Mitigation Plan, States
are required to include an overview of the type and location of all
natural hazards that can affect the State. In fact, 44 CFR
201.4(c)(2)(i) requires the Mitigation Plan to contain information not
only on previous occurrences but on the probability of future hazard
events. This approach allows States discretion in meeting the Federal
mitigation planning requirements and recognizes differences that exist
among State governments with respect to capability and resources as
well as variations in vulnerability within the planning area.
In addition, the FEMA Climate Change Adaptation Policy Statement
(2011-OPPA-01) affirms the need to address risks that may be linked to
climate change and identifies initial actions within existing statutes
and authorities to help integrate climate change adaptation
considerations into FEMA programs. Further, the President's Climate
Action Plan, released in June 2013, identifies three major initiatives
to prepare the United States for the impacts of climate change by
building stronger and safer communities and infrastructure, protecting
our economy and natural resources, and using sound science to
[[Page 22878]]
manage climate impacts. FEMA is committed to working with partners to
improve the relevance and effectiveness of mitigation planning to
increase the Nation's resilience through improvements to policy,
guidance, training, technical assistance, as well as other products.
FEMA encourages States to fully engage in the mitigation planning
process and, as stated in 44 CFR 201.4(b), to include coordination with
other State agencies, appropriate Federal agencies, and interested
groups. FEMA also encourages States to integrate their mitigation
planning to the extent possible with other ongoing State planning
efforts and other FEMA mitigation programs and initiatives. By fully
leveraging the mitigation planning process, States may be better able
to identify and incorporate the best available data, studies, and
models to assess changes in current and future hazards as well as
development patterns that may impact vulnerability. Further, States may
be better able to develop and implement a plan maintenance process that
ensures plan relevance over time. The accuracy and relevance of the
plan are important elements to ensure that resources are wisely
invested in implementing measures to reduce risk from future events. As
stated in the NPRM and the planning regulations at 44 CFR 201.4(a), the
mitigation plan is the demonstration of the State's commitment to
reduce risks from natural hazards and serves as a guide for State
decision makers as they commit resources to reducing the effects of
natural hazards.
The comment suggests that FEMA initiate another rulemaking
requiring States to address climate change in State Mitigation Plans.
The current regulation requires the State to include information on
future hazard events in its Mitigation Plan and allows the State
discretion whether to address climate change. 44 CFR 201.4(c)(2)(i).
The comment also encourages FEMA to implement an ``administrative
trigger'' meaning that following a ``major climate-sensitive hazard
event,'' if the plan did not adequately address climate change, the
State would be required to initiate an update; and if the State did not
incorporate new information into the plan, FEMA hazard mitigation
funding should be withheld. FEMA encourages States to review the plan
after disasters and update, if needed, to reflect changes in
priorities. States may also consider use of FEMA's Hazard Mitigation
Grant Program planning grants for planning related activities to update
risk assessments after catastrophic events. FEMA will work with States
post disaster, based on availability of resources and funding, to
review the State Mitigation Plan, in particular the risk assessment and
mitigation strategies, to guide implementation of mitigation actions
and the development of a recovery strategy as outlined in the National
Disaster Recovery Framework. Requiring plan updates using an
administrative trigger would require a change to the mitigation
planning regulation. FEMA has chosen not to initiate another rulemaking
to implement an administrative trigger, so as not to increase the
burden on States and FEMA, but will continue to monitor the necessity
of initiating another rulemaking requiring States to review the plan
after disasters and update, if needed, to reflect changes in
priorities.
As previously stated in the preamble, the vast majority of
respondents supported the regulatory change proposed in the March 1,
2013 NPRM; therefore, FEMA is adopting as final the NPRM (78 FR 13844,
Mar. 1, 2013) without change.
E. Implementation
The Standard State Mitigation Plan and the Enhanced State
Mitigation Plan updates will be due 5 years from the date of the
approval of the previous plan.
III. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
FEMA has prepared and reviewed this rule under the provisions of
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 51735,
Oct. 4, 1993) as supplemented by Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (76 FR 3821, Jan. 21, 2011). This
Final Rule is not a significant regulatory action, and therefore has
not been reviewed by the Office of Management and Budget (OMB).
This portion of the preamble summarizes FEMA's analysis of the
economic impacts of this Final Rule. However, readers seeking greater
detail are encouraged to read the full regulatory evaluation, a copy of
which FEMA has placed in the docket for this rulemaking.
In conducting the aforementioned analyses, FEMA has determined that
the Final Rule: (1) Has benefits that justify its costs; (2) is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; (3) will not have a significant economic
impact on a substantial number of small entities; and (4) will not
impose an unfunded mandate on State, local, or Tribal governments, or
on the private sector by exceeding $100 million or more annually
(adjusted for inflation with a base year of 1995). These analyses are
summarized below.
Who Is Potentially Affected by This Rule
The Final Rule will affect States that choose to submit updated
Standard State Mitigation Plans or Enhanced State Mitigation Plans to
FEMA for approval, and Indian Tribal governments that choose to meet
the requirements for Enhanced State Mitigation Plans in order to
qualify for increased HMGP funding.
Savings to Society of This Rule
The cost to update a State's Mitigation Plan is unique to that
respective State. However, for the purposes of this analysis, FEMA
estimates an average Standard State Mitigation Plan update unit cost of
$205,000 and an Enhanced State Mitigation Plan update unit cost of
$524,000.\5\ FEMA also assumes that 46 States would submit Standard
State Mitigation Plans and 10 States would submit Enhanced State
Mitigation Plans.
---------------------------------------------------------------------------
\5\ These plan update costs reflect cost and burden estimates in
section III. D. (``Paperwork Reduction Act (PRA) of 1995''). In
section III. D., ``hour burden'' in Table 3 is calculated by taking
23 percent of the State Mitigation Plan update cost, which
represents personnel costs, and dividing it by the estimated Urban
and Regional Planners wage rate of $45.33. This equates to 1,040
hours (($205,000 x 0.23)/$45.33 = 1,040.15) for Standard State
Mitigation Plan updates and 2,659 hours (($524,000 x 0.23)/$45.33 =
2,658.72) for Enhanced State Mitigation Plan updates. Additionally,
66 percent of the State Mitigation Plan update cost represents
contracting costs and 11 percent of the State Mitigation Plan update
cost represents non-labor costs (for both standard and enhanced plan
updates). The contracting and non-labor costs are used to estimate
the ``cost burden'' in Table 4 below. For Standard State Mitigation
Plan updates, this equates to $135,300 ($205,000 x 0.66 = $135,300)
``annual operations and maintenance costs'' and $22,550 ($205,000 x
0.11 = $22,550) for ``annual non-labor costs''. For Enhanced State
Mitigation Plan updates, this equates to $345,840 ($524,000 x 0.66 =
$345,840) ``annual operations and maintenance costs'' and $57,640
($524,000 x 0.11 = $57,640) for ``annual non-labor costs''.
---------------------------------------------------------------------------
FEMA will also incur costs to review State Mitigation Plans. FEMA
estimates that a General Schedule 13, Step 1, Federal employee, at a
fully loaded wage of $48.08 ($34.34*1.4 = $48.076) will spend 120 hours
reviewing a Standard or Enhanced State Mitigation Plan. The resulting
FEMA review cost per plan is $5,770 (120 hours * $48.08 per hour =
$5,769.60).
Therefore, the cost of State Mitigation Plan updates in a given
year, where all
[[Page 22879]]
updates are submitted, is approximately $15 million (($205,000 +
$5,770)*46 + ($524,000 + $5,770)*10 = $14,993,120). The extension of
the State Mitigation Plan update frequency from 3 to 5 years will
reduce the number of State Mitigation Plan updates submitted by 2 over
15 years. The resulting undiscounted total cost savings is
approximately $30 million over 15 years ($14,993,120 * 2 =
$29,986,240); or, $18.8 million total cost savings over 15 years if
discounted at 7 percent. The annual impact of this rule is
approximately $2 million undiscounted ($29,986,240 / 15 = $1,999,083)
and $2.06 million annualized at 7 percent.\6\
---------------------------------------------------------------------------
\6\ In Appendix A of the Regulatory Evaluation available in the
docket, FEMA includes estimated annualized costs at three and seven
percent according to guidance in OMB Circular A-4 (page 45). Office
of Management and Budget, Published September 17, 2003. Available
at: https://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.
---------------------------------------------------------------------------
Benefits of This Rule
The Final Rule will provide a number of unquantified benefits
including aligning the State Mitigation Plan update cycle with the
Local and Tribal Mitigation Plan update cycle and providing greater
flexibility for States to submit their State Mitigation Plan updates.
The rule will also provide an opportunity for States to apply cost
savings from the reduction in State Mitigation Plan update frequency to
other means of increasing resilience and reducing the Nation's risk to
natural hazards.
Significance Determination
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the Office of Management and Budget has not reviewed this
rule.
The rule is estimated to have a net quantified undiscounted savings
to society of approximately $30 million over 15 years. The annual
impact of this rule is an estimated net quantified savings to society
of approximately $2 million undiscounted ($1,999,083) and $2.06 million
annualized at 7 percent.
Retrospective Review
To facilitate the periodic review of existing significant
regulations, Executive Order 13563 requires agencies to consider how
best to promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned. The Executive Order requires agencies to issue a retrospective
review plan, consistent with law and the agency's resources and
regulatory priorities, under which the agency will periodically review
its existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving the regulatory objectives.
DHS issued its ``Final Plan for the Retrospective Review of
Existing Regulations'' (Plan) on August 22, 2011. The Plan can be found
on the DHS Open Government Web site at https://www.dhs.gov/xlibrary/assets/dhs-ogc-final-retrospective-review-plan-8-22-11-final.pdf. DHS
originally included this rule in the Plan as a long-term retrospective
review candidate, meaning the agency would undertake retrospective
review of the regulation within 3 years of the date of the Plan. The
Plan stated that FEMA would consider whether it would be more efficient
to extend the review period to 5 years for each of the plans as
requested by public commenters. DHS later moved this rule (1660-AA77)
to its list of current retrospective review projects.
DHS publishes periodic updates on the progress of its retrospective
review efforts. DHS published its most recent update, ``DHS
Retrospective Review Plan Report,'' in January 2014. That update can be
found on the DHS Open Government Web site at https://www.dhs.gov/publication/dhs-january-2014-retrospective-review-plan-report.
Review of FEMA's existing Mitigation Plan regulations revealed the
potential for State cost savings, approximately $30 million over 15
years, as well as other benefits. Therefore, FEMA is extending the
State Mitigation Plan minimum update frequency from 3 to 5 years.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), FEMA
evaluated and considered whether this rule would have a significant
economic impact on a substantial number of small entities. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
In the March 1, 2013 NPRM, FEMA invited comments on the initial
Regulatory Flexibility Act (RFA) determination. FEMA did not receive
any comments regarding the RFA determination. As the Final Rule will
not result in additional costs, FEMA does not anticipate that the rule
will have a significant economic impact on a substantial number of
small entities.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109
Stat. 48 (Mar. 22, 1995) (2 U.S.C. 1501 et seq.), requires Federal
agencies to assess the effects of their discretionary regulatory
actions that may result in the expenditure by a State, local, or Tribal
government, in the aggregate, or by the private sector of $100,000,000
or more in any one year. As the Final Rule will not have an impact
greater than $100,000,000 or more in any one year, it is not an
unfunded Federal mandate.
D. Paperwork Reduction Act (PRA) of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), an
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.
In this Final Rule, FEMA is seeking a revision to the already
existing collection of information identified as OMB Control Number
1660-0062. This revision reflects the reduction in the annual cost
burden to respondents or recordkeepers resulting from the Final Rule,
as well as refinements to current estimates in 1660-0062 based on
changes to the way cost burden is reported under the PRA. Annual cost
burden was previously derived from multiplying total annual burden
hours, based on subject matter expert average hour estimates per
mitigation plan, by the associated wage rates. However, FEMA has
refined how it calculates annual costs and now uses cost estimates
based on historical mitigation plan grant data, which includes contract
support and other associated costs. This Final Rule serves as the 30-
day comment period for this change
[[Page 22880]]
pursuant to 5 CFR 1320.12. FEMA invites the general public to comment
on the collection of information.
Collection of Information
Title: State/Local/Tribal Hazard Mitigation Plans.
Type of information collection: Revision of a currently approved
collection.
OMB Number: 1660-0062.
Form Titles and Numbers: None.
Abstract: The purpose of State, Local, and Tribal Hazard Mitigation
Plan requirements is to support the FEMA Mitigation grant programs, and
a significant State, local, and Tribal commitment to mitigation
activities, comprehensive mitigation planning, and strong program
management. Implementation of planned, pre-identified cost-effective
mitigation measures will streamline the disaster recovery process.
Mitigation plans are the demonstration of the goals and priority to
reduce risks from natural hazards. This Final Rule revises FEMA
Mitigation Planning regulations in order to reduce the frequency that
respondents submit Standard State and Enhanced State Mitigation Plan
updates from 3 to 5 years. This change in frequency will reduce 8,899
burden hours on the public and save $1,350,580 annually in respondent
burden costs. Due to the change in reporting methods described above,
the base line numbers have changed, resulting in an overall increase in
the estimated total annual cost. This impact is separate from the
effect of the Final Rule.
Affected Public: State, local, or Tribal Governments.
Estimated Number of Respondents: 56 States submit State Mitigation
Plan updates to FEMA. (There are 56 States, per the definition of State
at 44 CFR 201.2.) In addition, those 56 States also review and submit
Local and Tribal Mitigation Plans and plan updates to FEMA.
Estimated Total Annual Burden Hours: 227,366 hours.
The previously approved Total Annual Burden Hours was 768,320
hours. Based on adjustments to how this burden was estimated (see
Information Collection Request for details) and the rule's reduction in
burden, the new estimated Total Annual Burden Hours is 227,366 hours.
This is a decrease of 540,954 hours, of which approximately 8,899 hours
are attributed to the change in State Mitigation Plan update frequency.
However, some of the burden hours previously accounted for likely
reflected some of the costs, including contract support, now included
in the separately-reported categories under total annual cost burden.
Table 3 provides estimates of annualized cost to respondents for
the hour burdens for the collection of information.
Table 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Number of Total number burden Total Average Total
Type of respondent Form name/form number Number of responses per of responses per annual hourly annual
respondents respondent \1\ \2\ response burden wage rate respondent
(hours) (hours) \3\ cost \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Local or Tribal Government........ New Local and Tribal 56 5 280 289 80,920 $45.33 $3,668,104
Plans.
Local or Tribal Government........ Local and Tribal Plan 56 9 504 249 125,496 45.33 5,688,734
Updates.
State Government.................. State Review of Local 56 14 784 8 6,272 45.33 284,310
and Tribal Plans.
State Government.................. Standard State Plan 46 0.2 9 1,040 9,360 45.33 424,289
Updates.
State Government.................. Enhanced State Plan 10 0.2 2 2,659 5,318 45.33 241,065
Updates.
---------------------------------------------------------------------------------------------------------------------
Total......................... ..................... 56 ............... 1,579 ......... 227,366 ......... 10,306,502
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Standard State Plan Updates and Enhanced State Plan Updates Number of Responses per Respondent represents an annual average over 5 years (1 plan
update/5 years = 0.2).
\2\ Standard State Plan Updates Total Number of Responses is rounded to the nearest plan.
\3\ The ``Avg. Hourly Wage Rate'' for each respondent includes a 1.4 multiplier to reflect a loaded wage rate and rounded to the nearest cent.
\4\ Rounded to the nearest dollar.
Estimated Total Annual Cost: $33,532,730.
The previously approved Total Annual Cost was $33,452,652. Based on
adjustments to how this cost was estimated (see Information Collection
Request for details) and the rule's reduction in cost, the new
estimated Total Annual Cost is $33,532,730. This is an increase of
$80,078. This includes a $1,350,580 reduction in cost attributed to the
change in State Mitigation Plan update frequency.
Table 4 provides estimates of total annual cost burden to
respondents or recordkeepers resulting from the collection of
information.
[[Page 22881]]
Table 4
----------------------------------------------------------------------------------------------------------------
* Annual
* Annual capital operations and Annual non-labor
start-up cost maintenance cost cost
(investments in (such as (expenditures on Total annual
Data collection activity/ instrument overhead, recordkeeping, training, travel cost to
equipment and technical/ and other respondents
other one-time professional resources)
expenditures) services, etc.)
----------------------------------------------------------------------------------------------------------------
Development of New Local and Tribal $12,289,200 ................ ................ $12,289,200
Plans..................................
Local and Tribal Plan Updates........... ................ $16,299,360 $2,716,560 19,015,920
State Review of Local and Tribal Plans.. ................ ................ ................ 0
Standard State Mitigation Plan Updates.. ................ 1,217,700 202,950 1,420,650
Enhanced State Mitigation Plan Updates.. ................ 691,680 115,280 806,960
-----------------------------------------------------------------------
Total............................... 12,289,200 18,208,740 3,034,790 33,532,730
----------------------------------------------------------------------------------------------------------------
Overall Estimated Total Cost: $43,839,232.
The overall estimated cost of this collection is $43,839,232
($10,306,502 + $33,532,730). This is an increase of $10,386,580
($33,452,652--$43,839,232) from the currently approved OMB inventory.
E. National Environmental Policy Act (NEPA) of 1969
Section 102 of the National Environmental Policy Act of 1969
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
et seq.) requires agencies to consider the impacts in their decision-
making on the quality of the human environment. The Council on
Environmental Quality's procedures for implementing NEPA, 40 CFR 1500
et seq., require Federal agencies to prepare Environmental Impact
Statements (EIS) for major federal actions significantly affecting the
quality of the human environment. Each agency can develop categorical
exclusions to cover actions that typically do not trigger significant
impacts to the human environment individually or cumulatively. Agencies
develop environmental assessments (EA) to evaluate those actions that
do not fit an agency's categorical exclusion and for which the need for
an EIS is not readily apparent. At the end of the EA process the agency
will determine whether to make a Finding of No Significant Impact or
whether to initiate the EIS process.
Rulemaking is a major federal action subject to NEPA. The List of
exclusion categories at 44 CFR 10.8(d)(2)(ii) excludes the preparation,
revision, and adoption of regulations from the preparation of an EA or
EIS, where the rule relates to actions that qualify for categorical
exclusions. The development of plans under 44 CFR part 201 is
categorically excluded under 44 CFR 10.8(d)(2)(iii) and (xviii)(E). No
extraordinary circumstances exist that will trigger the need to develop
an EA or EIS. See 44 CFR 10.8(d)(3). An EA will not be prepared because
a categorical exclusion applies to this rulemaking action and no
extraordinary circumstances exist.
F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Under this Executive Order, to the extent
practicable and permitted by law, no agency shall promulgate any
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute, unless funds necessary to pay the direct costs
incurred by the Indian Tribal government or the Tribe in complying with
the regulation are provided by the Federal Government, or the agency
consults with Tribal officials.
This Final Rule revises FEMA's Mitigation Planning regulations in
order to reduce the frequency of Standard State and Enhanced State
Mitigation Plan updates from 3 to 5 years. Tribal Mitigation Plan
updates are already required every 5 years; however, in accordance with
44 CFR 201.3(e)(3), Indian Tribal governments are potentially eligible
to act as grantee and qualify for increased HMGP funding by submitting
an Enhanced Mitigation Plan. Indian Tribal governments that wish to
submit an Enhanced Mitigation Plan are required to update that plan
every 3 years; the Final Rule will reduce that frequency to every 5
years. For these reasons, this rule may have ``tribal implications'' as
defined in the Executive Order. Submission of the plan, however, is
voluntary, and changing the frequency of the plan from 3 to 5 years
will not impose direct compliance costs on Indian Tribal governments.
Therefore, FEMA finds that this Final Rule complies with Executive
Order 13175.
G. Executive Order 13132, Federalism
A rule has implications for federalism under Executive Order 13132,
``Federalism'' (64 FR 43255, Aug. 10, 1999), if it has a substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Under this
Executive Order, to the extent practicable and permitted by law, no
agency shall promulgate any regulation that has federalism
implications, that imposes substantial direct compliance costs on State
and local governments, and that is not required by statute, unless
funds necessary to pay the direct costs incurred by the State and local
governments in complying with the regulation are provided by the
Federal Government, or the agency consults with State and local
officials. FEMA has analyzed this Final Rule under the Executive Order
and determined that it does not have implications for federalism.
This Final Rule revises FEMA's Mitigation Planning regulations in
order to reduce the frequency of Standard State and Enhanced State
Mitigation Plan updates, extending the update requirement from 3 to 5
years. FEMA has received substantial input requesting that FEMA change
its Mitigation Planning regulations to
[[Page 22882]]
reduce the frequency of Standard State and Enhanced State Mitigation
Plan updates. Some of those requests have come from State officials.
The Standard State and Enhanced State Mitigation Plan updates are
voluntarily submitted by States. Per DMA 2000, Mitigation Plans are a
condition of receipt of increased Federal funding for hazard mitigation
measures. If a State chooses not to comply with the regulations in 44
CFR part 201, it still will be eligible for limited emergency
assistance under the Stafford Act. (See 42 U.S.C. 5170a, 5170b, 5173,
5174, 5177, 5179, 5180, 5182, 5183, 5184, and 5192).
H. Executive Order 12630, Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights'' (53 FR 8859, Mar. 18, 1988).
I. Executive Order 12898, Environmental Justice
Under Executive Order 12898, as amended, ``Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, Feb. 16, 1994), FEMA incorporates
environmental justice into its policies and programs. Executive Order
12898 requires each Federal agency to conduct its programs, policies,
and activities that substantially affect human health or the
environment, in a manner that ensures that those programs, policies,
and activities do not have the effect of excluding persons from
participation in, denying persons the benefit of, or subjecting persons
to discrimination because of their race, color, or national origin or
income level.
This rule relates to the implementation of section 322 of the
Stafford Act (42 U.S.C. 5165). Section 322 focuses specifically on
mitigation planning to identify the natural hazards, risks, and
vulnerabilities of areas in States, localities, and Tribal areas;
development of Local Mitigation Plans; technical assistance to local
and Tribal governments for mitigation planning; and identifying and
prioritizing mitigation actions that the State will support as
resources become available. The reduction in burden from the update
frequency may allow States to focus on implementing additional
mitigation actions identified through the planning process as a means
to increase resilience and reduce the Nation's risk to natural hazards;
thereby also protecting human lives and the environment. No action that
FEMA can anticipate under this rule will have a disproportionately high
and adverse human health or environmental effect on any segment of the
population.
J. Executive Order 12988, Civil Justice Reform
This Final Rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729,
Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce
burden in the federal court system.
K. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
This Final Rule will not create environmental health risks or
safety risks for children under Executive Order 13045, ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, Apr. 23, 1997).
L. Executive Order 11988, Floodplain Management
FEMA has prepared and reviewed this rule under the provisions of
Executive Order 11988, as amended, ``Floodplain Management'' (42 FR
26951, May 25, 1977). The regulations at 44 CFR part 9 set forth FEMA's
policy, procedures, and responsibilities in implementing this Executive
Order. In summary, these are, to the greatest possible degree: to avoid
long and short term adverse impacts associated with the occupancy and
modification of floodplains; avoid direct and indirect support of
floodplain development whenever there is a practical alternative;
reduce the risk of flood loss; promote the use of nonstructural flood
protection methods to reduce the risk of flood loss; minimize the
impacts of floods on human health, safety and welfare; restore and
preserve the natural and beneficial values served by floodplains; and
adhere to the objectives of the Unified National Program for Floodplain
Management.
As stated in the preamble, the planning process provides a link
between State, Tribal and local mitigation programs. Both State level
and local plans should address strategies for incorporating post-
disaster early mitigation implementation strategies and sustainable
recovery actions. FEMA also recognizes that governments are involved in
a range of planning activities and that mitigation plans may be linked
to or reference comprehensive plans, land use plans, master plans, and
other non-natural hazard plans. Improved mitigation planning will
result in a better understanding of risks and vulnerabilities, as well
as expediting implementation of measures and activities to reduce those
risks, both pre- and post-disaster. This Final Rule revises FEMA's
Mitigation Planning regulations in order to reduce the frequency of
Standard State and Enhanced State Mitigation Plan updates by extending
the update requirement from 3 to 5 years. The change aligns the State
update requirements with local and Tribal Mitigation Plan update
requirements, which does not conflict with the intent of the Executive
Order.
M. Congressional Review Act
FEMA has sent this Final Rule to the Congress and to the Government
Accountability Office under the Congressional Review of Agency
Rulemaking Act, (``Congressional Review Act''), Public Law 104-121, 110
Stat. 873 (Mar. 29, 1996) (5 U.S.C. 804). This rule is not a ``major
rule'' within the meaning of the Congressional Review Act.
List of Subjects in 44 CFR Part 201
Administrative practice and procedure, Disaster assistance, Grant
programs, and Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, amend part 201 of title
44 of the Code of Federal Regulations as follows:
PART 201--MITIGATION PLANNING
0
1. The authority citation for part 201 continues to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
0
2. In Sec. 201.3, revise paragraphs (b)(5), (c)(2), and (c)(3), and
the second sentence of paragraph (e)(3) to read as follows:
Sec. 201.3 Responsibilities.
* * * * *
(b) * * *
(5) Conduct reviews, at least once every 5 years, of State
mitigation activities, plans, and programs to ensure that mitigation
commitments are fulfilled, and when necessary, take action, including
recovery of funds or denial of future funds, if mitigation commitments
are not fulfilled.
[[Page 22883]]
(c) * * *
(2) In order to be considered for the 20 percent HMGP funding,
prepare and submit an Enhanced State Mitigation Plan in accordance with
Sec. 201.5, which must be reviewed and updated, if necessary, every 5
years from the date of the approval of the previous plan.
(3) At a minimum, review and update the Standard State Mitigation
Plan every 5 years from the date of the approval of the previous plan
in order to continue program eligibility.
* * * * *
(e) * * *
(3) * * * The plan must be reviewed and updated at least every 5
years from the date of approval of the previous plan.
0
3. In Sec. 201.4, revise the first sentence of paragraph (d) to read
as follows:
Sec. 201.4 Standard State Mitigation Plans.
* * * * *
(d) * * * Plan must be reviewed and revised to reflect changes in
development, progress in statewide mitigation efforts, and changes in
priorities and resubmitted for approval to the appropriate Regional
Administrator every 5 years. * * *
0
4. In Sec. 201.5, revise the third sentence of paragraph (a), revise
the first sentence of paragraph (c)(1), and revise (c)(2) to read as
follows:
Sec. 201.5 Enhanced State Mitigation Plans.
(a) * * * In order for the State to be eligible for the 20 percent
HMGP funding, FEMA must have approved the plan within 5 years prior to
the disaster declaration.
* * * * *
(c) * * *
(1) A State must review and revise its plan to reflect changes in
development, progress in statewide mitigation efforts, and changes in
priorities, and resubmit it for approval to the appropriate Regional
Administrator every 5 years. * * *
(2) In order for a State to be eligible for the 20 percent HMGP
funding, the Enhanced State Mitigation plan must be approved by FEMA
within the 5 years prior to the current major disaster declaration.
Dated: April 17, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-09461 Filed 4-24-14; 8:45 am]
BILLING CODE 9111-66-P
